SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 

GIFT  OF 

Roscoe  Pound 


THE    LAW 

OF 


LAND    CONTRACTS 


BY 

ASHER  L.  CORNELIUS 

OF  THE  DETROIT  BAR 


CHICAGO 

CALLAGHAN  &  COMPANY 

1922 


T 

C£/47L 


Copyright  1922 

by 

CALLAGHAN   &   COMPANY 


52  Preface 


£ 
« 


This  work  is  submitted  to  the  legal  profession  as  the  result 
of  several  years'  research  on  the  various  subjects  treated.  It  is 
intended  to  be  a  practical  treatise  for  the  busy  practitioner  on 
the  subject  of  land  contracts,  preliminary  and  otherwise,  and 
of  the  rights,  remedies,  and  obligations  growing  out  of  such 
contracts. 

The  equity  forms  incorporated  in  this  treatise  have  been 
made  as  brief  as  possible  to  conform  to  the  letter  and  spirit  of 
the  Judicature  Act.  Certain  changes  have  been  made  to  con- 
form to  recent  Supreme  Court  decisions,  statutory  provisions, 
and  Circuit  Court  Rules.  These  modern  changes  are  discussed 
in  Section  80  of  the  text. 

The  author  desires  to  acknowledge  receipt  of  many  helpful 
suggestions  from  members  of  the  Detroit  bar  in  the  prepara- 
tion of  the  manuscript,  for  which  he  extends  thanks  and  will 
be  pleased  to  receive  in  the  future  suggestions  as  to  how  the 
work  may  be  improved. 

He  is  also  mindful  of  the  fact  that  this  treatise  will  not 
answer  every  question  presented  to  it  by  the  legal  profession 
on  the  subjects  discussed  herein,  nevertheless,  if  this  work 
shall  render  the  law  of  Land  Contracts  and  collateral  subjects 
more  accessible  to  the  legal  profession,  the  author  will  feel 
himself  well  repaid  for  the  labor  expended  thereon. 

ASHER  L.  CORNELIUS. 
Detroit,  Michigan,  March  1,  1922. 


792751 


Table  of  Contents 


CHAPTER  I 

IMPORTANCE  OF  PRELIMINARY  AGREEMENT  — PRACTICAL 

SUGGESTIONS  IN   REGARD  THERETO  — DUTY   OF 

COUNSEL  IN  REGARD  TO  CLOSING 

TRANSACTIONS 

§      1.         Introductory  Statement. 

§  2.  Closing  of  Transaction — Importance  of  Preliminary 
Agreement. 

§  3.  Details  Which  Should  Be  Settled  By  the  Preliminary 
Agreement. 

§  4.  Duty  of  Counsel  in  Closing  Transaction  Where  Pre- 
liminary Agreement  Is  Silent  on  Important 
Details. 

§      5.         Counsel  Should  Avoid  Acting  in  Dual  Capacity. 

§      6.         Broker  Not  to  Draw  Agreement. 

§      7.         To  What  the  Vendor  Is  Entitled, 
for] 

§      8.         To  What  the  Vendee  Is  Entitled. 

§      9.         Substitute  for  Non-Assignment  Clause. 

CHAPTER  II 

STATUTE  OF  FRAUDS  — SUFFICIENCY  OF  THE  PRELIMINARY 

AGREEMENT  — ORAL  CONTRACTS  PARTLY 

PERFORMED  — MISCELLANEOUS 

§    10.         The  Statute  of  Frauds — General  Considerations. 

§    11.         Auction  Sales — Sufficiency  of  Memorandum. 

§    12.         Statute  of  Frauds— What  Contracts  Affected  By. 

§  13.  Agreements  Pertaining  to  Real  Estate  Held  Not 
Within  Statute  of  Frauds. 

§    14.         Statute  of  Frauds  Surrender  or  Release  of  Interests, 

§  15.  The  Memorandum  May  Consist  of  Letters,  Tele- 
grams and  Detached  Writings. 

§    16.         Aiding  Memorandum  by  Parol  Evidence. 


vi  TABLE  OF  CONTENTS 

§    17.         Provisions  of  the  Preliminary  Contract. 

§    18.         Essential   Elements   of   Preliminary   Contracts   for 

Sale  of  Real  Estate. 
§    19.         Effect  of  Void  Agreements  Under  Statute  of  Frauds. 
8    20.         Effect  of  Part  Performance  of  Oral  Agreement  to 

o 

Sell  Real  Estate — General  Considerations. 

§  21.  Actions  at  Law  On  Verbal  Contracts  Partly  Re- 
moved. 

§  22.  When  Disposal  of  Land  Contract  in  Escrow  Ad- 
visable. 

§    23.         Loss  by  Fire  Pending  Purchase. 

§    24.         Sufficiency  of  Tender  of  Performance. 

§    25.         Pleadings  and  Briefs  in  Late  Michigan  Cases. 


CHAPTER  III 

FORMS  OF  PRELIMINARY  CONTRACTS  — LAND  CONTRACTS 

ASSIGNMENT  OF  LAND  CONTRACTS  — ESCROW 

AGREEMENTS  —  POWERS  OF  ATTORNEY 

§    26.         Short  Form  Preliminary  Contract  for  the  Sale  of 

Real  Estate  for  Cash. 
§    27.         Preliminary  Agreement,  Short  Form. 
§    28.         Preliminary  Contract  for  the  Sale  of  Real  Estate — 
Form  Favorable  to  Vendee. 
Form  Favorable  to  the  Vendor. 
Escrow  Memorandum  for  the  Disposition  of  a  Land 

Contract  in  Escrow. 
Defective  Forms  of  Land  Contract. 
Form  of  Land  Contract — General. 
Wayne  County  Abstract  Company's  Form. 
Forms  of  Land  Contract — Union  Trust  Company 

Form. 
Detroit  Land  Contract  Form. 
Form  of  Land  Contract  With  Special  Tax  Clause. 
Contract  for  Sale  of  Farm  Land  on  Long  Time. 
Form  for  Recording  Payments  on  Land  Contracts. 
Assignment  of  Land  Contract,  Long  Form. 
Assignment  of  Land   Contract,   Short  Form,  with 
Consent  of  Vendor. 


§ 

29. 

§ 

30. 

§ 

31. 

§ 

32. 

>: 

33. 

§ 

34, 

§ 

35 

§ 

36 

§ 

37 

§ 

38 

§ 

39 

§ 

40 

TABLE  OF  CONTENTS  vii 

§    41.         Contract  for  the  Sale  of  City  Lots,  Vendor  to  Ad- 
vance Funds  for  Building. 
8    42.         Power  of  Attorney  to  Lease  or  Sell  Land. 


CHAPTER  IV 

LAND  CONTRACTS  — NATURE  OF  ESTATE  CREATED  —  EXE- 
CUTION, PARTIES,  CONSTRUCTION  — 
MISCELLANEOUS  TOPICS 

§    43.         Nature  of  Estate  Created  by  Land  Contract. 

§    44.         Nature  of  Estate  Where  Vendees  Are  Husband  and 

Wife. 
§    45.         Respective  Shares  When  Vendees  Are  Husband  and 

Wife  Joined  With  Others. 
§    46.         Land  Contracts,  Capacity  of  Parties. 
§    47.         Land  Contracts,  Execution,  Statutory  Requirements. 

§    48.         Consideration  Need  Not  Be  Stated  in  Contract. 

§    49.         Land  Contracts,  Acknowledgments  and  Registration. 

§    50.         Form  of  Acknowledgment,  Statutory  Provision. 

§    51.        Authentication   of  Written   Instruments   Executed 
Outside  of  the  State. 

§    52.         Acknowledgments  in  Other  States  and  Territories. 

§    53.         Acknowledgment  of  Contracts  Executed  in  Foreign 
Countries. 

§    54.         Land  Contracts  Defectively  Executed,  Curative  Stat- 
utes. 

§    55.         Land  Contracts  as  Evidence  (Certified  Copy). 

§    56.         Discharging  Land  Contracts  of  Record. 

§    57.        Registration  of  Land  Contracts  Where  Land  Af- 
fected Lies  in  Two  or  More  Counties. 

§    58.         Possession  by   Vendee   as   Constructive   Notice  of 
Contract. 

§    59.         The  Specific  Tax  on  Land  Contracts. 

§    60.         Basis  of  Computing  Specific  Tax  on  Land  Contracts. 

§    61.         Sale  of  Expectant  Interests. 

§    62.        Vendor's  Equitable  Lien  for  Unpaid  Purchase  Price. 


§ 

63. 

§ 

64. 

§ 

65. 

§ 

66. 

§ 

67. 

§ 

68. 

§ 

69. 

§ 

70. 

§ 

71. 

viii  TABLE  OF  CONTENTS 

CHAPTER  V 

CORRECTING    DEFECTS    IN    TITLE— MARKETABLE    TITLE- 
TITLE  BY  ADVERSE  POSSESSION— ADVERSE  POSSES- 
SION OF  VACANT,  WILD  AND  UNOCCUPIED  LAND 
—  REMEDYING  DEFECTS  IN  THE  TITLE  BY 
AFFIDAVIT— DISCHARGING  ANCIENT 
MORTGAGES— PLEADING,   PRAC- 
TICE AND  FORMS 

Marketable  Titles — Terminology. 

Clouds  on  the  Title — Definition. 

Discharge  of  Mortgage  of  Record  by  Petition. 

Defects  of  Record,  Remediable  Affidavits — Forms. 

Form  of  Petition  for  Discharge  of  Mortgage. 

Form  of  Certificate  Discharging  Mortgage. 

Defects  in  Title  Curable  by  Affidavits. 

Title  by  Adverse  Possession. 

Adverse  Possession  When  Five- Year  Period  Suffi- 
cient to  Vest  Title. 
§    72.         Adverse    Possession    by    One    Co-Tenant    Against 
Another. 

Adverse  Possession  Vendee  Against  Vendor. 

Adverse  Possession  of  Vacant,  Wild  and  Unoccupied 
Land. 

Adverse  Possession  Against  the  State. 

Taking  Successive  Possession. 

Titles  Held  to  Be  Defective — Michigan  Decisions. 

Defective  Titles — Decisions  from  Other  States. 


CHAPTER  VI 

REMEDYING    DEFECTS    IN    THE    TITLE  — THE    ACTION    TO 

QUIET  TITLE 

§    79.         Quieting  the  Title. 

§    80.         Equity  Pleading  and  Practice — Modern  Changes. 

§    81.         Bill  of  Complaint — Statutory  Provisions. 

§    82.         Quieting  the  Title— Outstanding  Tax  Titles. 

§  83.  Statutory  Provisions — Parties  Unknown  Defend- 
ants. 

§  84.  Substituted  Service — Unknown  Defendants,  Ap- 
pointing Guardian  Ad  Litem. 


§ 

73 

§ 

74, 

§ 

75 

* 

76 

§ 

77 

§ 

78 

TABLE  OF  CONTENTS  ix 

§  85.  Parties  Not  to  Be  Joined  as  Unknown  Defendants 
Unless  Fifteen  Years  Have  Elapsed. 

§  86.  The  Action  to  Quiet  Title — Miscellaneous  Michigan 
Decisions. 

§  87.  Bill  of  Complaint  to  Quiet  Title  Because  of  Out- 
standing Tax  Titles,  Misdescription  of  the  Prem- 
ises, Failure  to  State  the  Marital  Status  of  Cer- 
tain Grantors,  Containing  Averments  Necessary 
in  the  Case  of  Unknown  Heirs,  Legatees  and 
Devisees. 

§  88.  Decree  Quieting  Title  Because  of  Outstanding  Tax 
Titles,  Misdescription  of  the  Premises,  Failure  to 
State  the  Marital  Status  of  Certain  Grantors. 

§    89.        Decree  to  Quiet  Title — Cancel  Land  Contract. 

§    90.         Effect  of  Decree. 

§  91.  Bill  of  Complaint  to  Cancel  Land  Contract  After 
Forfeiture. 

§  92.  Bill  of  Complaint  Form  to  Quiet  Title — Cloud  Cre- 
ated by  Quit-Claim  Deed  by  Vendee. 

§    93.         Bill  of  Complaint  to  Quiet  Title  to  an  Easement. 

§  94.  The  Pleadings  and  Briefs  Used  in  Late  Michigan 
Cases. 


CHAPTER  VII 

SPECIFIC    PERFORMANCE    OF    LAND    CONTRACT  — RELIEF. 

WHEN  GRANTED  — WHEN  DENIED  — 

GENERAL  PRINCIPLES 

§    95.         The  Remedy  Discretionary. 

§    96.         Specific  Performance,  General  Principles. 

§    97.         Application  of  the  Remedy 

§    98.         Same  Subject — Continued. 

§  99.  Specific  Performance  of  an  Agreement  to  Execute 
a  Land  Contract. 

§  100.         Pre-Dated  Agreements  Executed  on  Sunday. 

§  101.  Intoxication  as  Grounds  for  Refusal,  Specific  Per- 
formance of  Contracts. 

§  102.         Relief  Where  Wife  Fails. 

§  103.  Relief  Refused  Even  if  Facts  Would  Not  Warrant 
Rescission. 


x  TABLE  OF  CONTENTS 

§  104.         Specific  Performance  by  Vendor  Against  Vendee. 

§  105.  Inadequacy  of  Consideration  Grounds  for  Denial 
or  Relief. 

§  106.  No  Relief  if  Contract  Is  Unfair,  Harsh,  Oppressive 
or  Inequitable. 

§  107.  Where  Non-Enforceable  Agreement  Performed  By 
Plaintiff. 

§  108.         Specific  Performance  of  Option  Contracts. 

§  109.  No  Relief  When  Performance  Would  Be  Nugatory 
or  Decree  Impossible  to  Enforce. 

§  110.  What  Mistakes  Warrant  Denial  of  Specific  Perform- 
ance. 

§  111.         Effects  of  First  Substantial  Breech. 

§  112.         Mutuality  of  the  Remedy — Exceptions. 

§  113.         Relief  Granted — Illustrated  Cases. 

§  114.         Illustrative  Cases — Relief  Denied. 

CHAPTER  VIII 

SPECIFIC     PERFORMANCE— PARTIES     TO     THE     ACTION- 
FORMS— BILLS    OF    COMPLAINT  — DECREES  — PRO- 
CEEDINGS IN  THE  PROBATE  COURT— FORMS 

§  115.         Parties  to  the  Action. 

§  116.         Specific  Performance  Substituted  Service. 

§  117.         Grantee  of  Vendor  as  Defendant. 

§  118.  Specific  Performance  Vendor  Against  Assignee  of 
Vendee. 

§  119.  Specific  Performance  Against  Assignee  in  Bank- 
ruptcy. 

§  120.         Evidence,  Practice,  Miscellaneous  Decisions. 

§  121.  Specific  Performance — Illustrative  Cases — Relief 
Granted. 

§  122.  Specific  Performance — Illustrative  Cases — Relief 
Denied. 

§  123.  Specific  Performance — Bill  of  Complaint — Agree- 
ment in  Writing. 

§  124.  Decree  for  Specific  Performance  of  Written  Con- 
tract. 

§  125.  Specific  Performance — Bill  of  Complaint,  Verbal 
Agreement. 


TABLE  OF  CONTENTS  xi 

§  126.         Specific  Performance— Bill  of  Complaint  by  Vendee 

Against  Administrator  and  Heirs  of  Vendor. 
§  127.         Bill  of  Complaint — Vendor  Against  Vendee. 
§  128.         Status   of  Unfulfilled   Land   Contracts   in    Case   of 

Death  of  One  of  the  Contracting  Parties. 
§  129.         Specific  Performance  in  the  Probate  Court. 
§  130.         The  Petition. 
§  131.         The  Hearing. 
§  132.         Provisions  for  Appeal. 
§  133.         Effect  of  Conveyance. 
§  134.         Effect  of  Registration  of  Decree. 
§  135.         Specific  Performance  by  Guardians  of  Incompetents 

and  Spendthrifts. 
§  136.         Specific  Performance  by  Guardian  of  Minors. 
§  137.         Form  of  Petition  for  Specific  Performance. 
§  138.         Form  of  Order  for  Publication. 
§  139.         Form  of  Proof  of  Service. 
§  140.         Form  of  Proof  of  Publication. 
§  141.         Form  of  Order  for  Specific  Performance  of  Land 

Contract. 
§  142.        Deed  Where   Executor  or  Administrator  Conveys 

Pursuant  to  Land  Contract  Under  P.  A.  396,  1919. 
§  143.         Pleadings  and  Briefs  Used  in  Late  Michigan  Cases. 

CHAPTER  IX 

FORFEITURE  OF  LAND  CONTRACTS  — POSSESSORY 
PROCEEDINGS,  BY  VENDOR 

§  144.  Remedies  Available  to  the  Vendor  Upon  Breach  of 
Contract  by  Vendee — General  Consideration. 

§  145.         Michigan  Doctrine  of  Forfeiture,  Generally. 

§  146.  Forfeiture  of  Land  Contract  in  Case  of  Death  of 
One  of  Contracting  Parties. 

§  147.         First  Step  in  Effecting  Forfeiture  of  Contract. 

§  148.         Where  the  Contract  Waives  Notice  of  Forfeiture. 

§  149.         Notice  of  Forfeiture — Forms. 

§  150.         Waiver  of  Forfeiture  or  Default  in  the  Contract. 

§  151.         Courses  Open  to  Vendor  After  Forfeiture. 

§  152.         Action  in  Ejectment  by  Vendor. 

5  153.         Vendor's  Action  in  Ejectment— The  Declaration. 


xii  TABLE  OF  CONTENTS 

§  154.  Ejectment,  Declaration  Form. 

§  155.  Vendee  Estopped  to  Deny  Vendor's  Title. 

§  156.  Actions  in  Ejectment  by  Vendor  or  Vendee  Against 

Third  Persons. 

§  157.  Summary  Proceedings  by  Vendor  for  Possession. 

§  158.  Form  of  Complaint  in  Summary  Proceedings. 

§  159.  The  Plea  in  Summary  Proceedings. 

§  160.  Incidents  in  Relation  to  Summary  Proceedings. 

§  161.  Service  Where  Defendant  Cannot  be  Found. 

§  162.  Steps  on  Appeal  from  Circuit  Court  Commissioner. 

§  163.  Form  of  Affidavit  on  Appeal. 

§  164.  Bond  on  Appeal. 

§  165.  Return  on  Appeal. 

§  166.  Effect  of  Final  Judgment  in  Possessory  Proceedings. 

§  167.  Effect  of  Registration  of  Writ  of  Restitution. 

§  168.  Proceedings  to  Have  Forfeiture  Decreed. 

§  169.  Bill  of  Complaint — Form  to  Have  Forfeiture  Legally 

Established. 

8  170.  Decree,  Form  of  Declaring  Forfeiture  Effected. 


CHAPTER  X 

FORFEITURE  WHEN   SUSTAINED,  WHEN   RELIEF  FROM 
GRANTED  — ILLUSTRATIVE  CASES  — PLEAD- 
ING, PRACTICE  AND  FORMS 

§  171.  Relief  from  Forfeiture  When  Granted,  General 
Principles. 

§  172.  Forfeiture  of  Contract  for  Violation  of  Non-Assign- 
ment Clause. 

§  173.  Same  Subject  Continued. 

§  174.  Forfeiture  Not  Sustained.    Illustrative  Cases. 

§  175.  Relief  from  Forfeiture  Granted,  Illustrative  Cases. 

§  176.  Examples  of  Relief  from  Forfeiture  Granted. 

§  177.  Relief  from  Forfeiture  Granted.     Illustrative  Cases, 

§  178.  Relief  from  Forfeiture  Granted.     Illustrative  Cases. 

§  179.  Forfeiture  Sustained.    Illustrative  Cases. 

§  180.  Forfeiture  Sustained.    Illustrative  Cases. 

§  181.  Forfeiture  Sustained.    Illustrative  Cases. 

§  182.  Forfeiture  Sustained.     Illustrative  Cases. 

8  183.  Relief  from  Forfeiture  Necessity  of  Tender. 


TABLE  OF  CONTENTS  xiii 

§  184.  Relief  from  Forfeiture  After  Final  Judgment  by 
Circuit  Court  Commissioner. 

§  185.  Relief  from  Forfeiture,  Bill  of  Complaint,  Form  of, 
Including  Averments  for  Specific  Performance 
and  Injunctive  Relief. 

§  185A.  Pleadings  and  Briefs  in  Late  Michigan  Cases  In- 
volving Relief  from  Forfeiture. 

CHAPTER  XI 

FORECLOSURE  OF  VENDOR'S  LIEN  — PLEADING  AND 

PRACTICE 

§  186.         Foreclosure  by  Vendor,  Nature  of  Action. 

§  187.  What  Actions  Are  Waived  by  Pursuing  Remedy  of 
Foreclosure. 

§  188.  Pursuing  Foreclosure  and  Action  at  Law  for  Pur- 
chase Price  Concurrently. ' 

§  189.  Foreclosure  of  Land  Contract — Bill  of  Complaint 
Form. 

§  190.         Decree  of  Foreclosure — Form. 

§  191.         Commissioner's  Deed  on  Foreclosure  Sale. 

§  192.  Notice  of  Sale  by  Circuit  Court  Commissioner — 
Form. 

§  193.         Affidavit  of  Posting  Notices  of  Sale — Form. 

§  194.         Circuit  Court  Commissioner's  Report  of  Sale — Form. 

§  195.  Exhibit  "C,"  Statement  of  Fees  and  Disbursements 
by  Circuit  Court  Commissioner  on  Sale. 

§  196.         Forms  of  Receipts  from  Circuit  Court  Commissioner. 

§  196A.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
in  the  Foreclosure  of  Vendor's  Liens. 

CHAPTER  XII 

REFORMATION   OF  LAND   CONTRACTS  — PLEADING  AND 
PRACTICE— LATE  MICHIGAN  CASES 

§  197.         Reformation  of  Land  Contracts. 
§  198.         Illustrative  Michigan  Decisions. 
§  199.         Mistakes  of  Law. 
§  200.         Evidence. 

§  201.  Bill  of  Complaint  to  Reform  a  Land  Contract — 
Form. 


xiv  TABLE  OF  CONTENTS 

§  202.         Decree  Reforming  Land  Contract — Form. 

§  203.  Pleadings  and  Briefs  of  Counsel  Used  in  Late  Michi- 
gan Cases  Involving  the  Reformation  of  Instru- 
ments. 

CHAPTER  XIII 

ACTIONS  FOR  FRAUDULENT  MISREPRESENTATIONS- 
PLEADINGS,  EVIDENCE,  MISCELLANEOUS 
—  BILLS  OF  COMPLAINT— PLEAD- 
INGS AND  BRIEFS  USED  IN 
LATE  MICHIGAN  CASES 

I.  FALSE   REPRESENTATIONS 

§  204.         General  Principles. 

§  205.         Materiality  of  Representations. 

§  206.         Representations  as  to  Matter  of  Law. 

§  207.         Expressions  of  Opinion. 

§  208.  Promises  as  to  improvements  or  Use  of  Real 
Property. 

§  209.         Representations  as  to  Title,  Interest. 

§  210.         Concealment  of  Encumbrance. 

§  211.  Representations  as  to  Quantity,  Boundaries  or 
Location. 

§  212.         Representations  as  to  Value. 

§  213.  Representations  as  to  Quality,  Conditions  and  Im- 
provement. 

II.  REMEDIES  FOR  FRAUDULENT  MISREPRESENTATIONS 

(A)  Of  the  Purchaser. 
§  214.         Jurisdiction  of  Equity. 
§  215.         Actions  at  Law. 

§  216.         Time  to  Rescind. 

§  217.         Waiver  of  Right  to  Rescind  by  Acts  or  Assertions  of 

Ownership. 
§  218.         Restoration  of  Status  Quo. 
§  219.         Damages. 

(B)  Of  the  Vendor. 
§  220.         In  General. 

§  221.         As  to  Area. 

§  222.         As  to  Title. 

§  223.         As  to  Value  of  Land. 


TABLE  OF  CONTENTS  xv 

§  224.         As  to  Thing  of  Value  Given  for  Land. 
§  225.         Non-Disclosure  and  Concealment. 

III.  PLEADING  AND  PRACTICE 

(A)  Equity. 

§  226.  Requisite  of  Bill  of  Complaint. 

§  227.  Allegations  of  Fraud  and  False  Representations. 

§  228.  Describing  Instrument. 

§  229.  Showing  Promptness  and  Diligence. 

§  230.  Offer  to  Restore  or  do  Equity. 

§  231.  Answer  or  Counterclaim. 

§  232.  Form  of  Bill  of  Complaint. 

(B)  Actions  at  Law. 

§  233.         Requisites  of  Declaration. 

§  234.         Form. 

§  235.         Declaration. 

§  236.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases, 
Involving  Actions  for  Fraudulent  Misrepresenta- 
tions, Both  in  Equity  and  in  Law. 

CHAPTER  XIV 

REAL   ESTATE   BROKERS  — STATUTORY    PROVISIONS- 
LICENSING  RIGHTS  — DUTIES,  LIABILITIES, 
MISCELLANEOUS 

REAL  ESTATE  BROKERS 

§  237.         Definition. 

§  238.         Regulation  and  Licensing. 

§  239.         Form  of  Application  for  License  for  Real  Estate 

Broker. 
§  240.         Form  of  Application  for  License  for  Real  Estate 

Broker. 
§  241.         Form  of  Application  for  License  for  Real  Estate 

Salesman. 
§  242.         Commission  Agreement. 
§  243.         The  Decisions  on  the  Duty  of  the  Broker. 
§  244.         When  Commission  Earned. 

CHAPTER  XV 

OPTIONS 
§  245.  Definition  and  Nature,  Real  Estate  Options. 
§  246.  Formal   Requisites. 


xvi  TABLE  OF  CONTENTS 

§  247.  Form  of  Options. 

§  248.  Consideration. 

§  249.  Statute  of  Frauds. 

§  250.  Option  Contract  Distinguished  from  Contract  of  Sale. 

§  251.  Option  Contract  Distinguished  From  Agency. 

§  252.  Assignability  of  Option  Contract. 

§  253.  Time  of  Exercising  Option  Contract. 

§  254.  Discharge  of  Option  Contract. 

§  255.  Payment  and  Tender. 

§  256.  Effect  of  Exercising  Option  or  Election. 

§  257.  Against  Whom  Enforceable. 

§258.  Remedies. 

§  259.  Specific  Performance. 

§  260.  The  Option  Upheld. 

§  261.  The  Option  Defeated. 

§  262.  Controversy  as  to  the  Character  of  the  Instrument. 


CHAPTER  I 

IMPORTANCE  OF  PRELIMINARY  AGREEMENT 

PRACTICAL  SUGGESTIONS  IN  REGARD  THERETO 

DUTY  OF  COUNSEL  IN  REGARD  TO  CLOSING  TRANSACTION 

§  1.  Introductory   Statement. 

§  2.  Closing  of  Transaction.     Importance  of  Preliminary  Agreement. 
§  3.  Details  Which  Should  be  Settled  by  the  Preliminary  Agreement. 
$  4.  Duty  of  Counsel  in  Closing  Transaction  Where  Preliminary  Agree- 
ment is  Silent  on  Important  Details. 
§  5.  Counsel  Should  Avoid  Acting  in  Dual  Capacity. 
§  6.  Broker  Not  to  Draw  Agreement. 
§  7.  To  What  the  Vendor  is  Entitled. 
5  8.  To  What  the  Vendee  is  Entitled. 
§  9.  Substitute  for  Non-assignment  Clause. 

§  1.  Introductory  Statement. — Usually  the  first  step  towards 
consummating  a  sale  of  real  estate  is  the  execution  of  some 
sort  of  preliminary  memorandum  of  agreement  to  bind  the 
bargain  accompanied  by  some  payment  on  the  purchase  price 
by  the  vendee.  A  logical  arrangement  of  a  treatise  on  the 
subject  of  land  contracts  requires  treatment  of  such  prelimin- 
ary agreements  in  the  beginning  of  the  work. 

§  2.  Closing  of  Transaction  —  Importance  of  Preliminary 
Agreement. — In  every  transaction  involving  the  sale  and  pur- 
chase of  real  estate  there  are  usually  two  important  stages: 
The  preliminary  and  the  closing  one. 

There  are  a  number  of  reasons  why  a  transaction  is  not  and 
should  not  be  closed  immediately  upon  the  vendor  and  vendee 
coming  together.  The  weightiest  of  these  reasons  is,  that  the 
vendee  knows  nothing  about  the  character  of  the  title  which  he 
is  to  acquire.  It  is  quite  true  that  in  most  cases  the  land  con- 
tract furnished  the  vendee  contains  the  vendor's  guarantee  to 
furnish  a  good  title,  but  misunderstandings  as  to  what  con- 
stitutes such  a  title  are  so  common,  and  the  value  of  the 
vendor's  guarantee  is  so  frequently  unknown,  that  no  one 


THE  LAW  OF  LAND  CONTRACTS 


[§2 


should  attempt  to  purchase  property  on  land  contract  relying 
solely  upon  the  representations  of  the  vendor  that  at  the  proper 
time  he  will  show  a  marketable  title. 

Perhaps  the  controlling  consideration  in  such  a  transaction, 
that  upon  which  depend  all  future  relations  between  the  vendor, 
the  vendee  and  the  broker  as  well,  is  the  preliminary  agree- 
ment. Much  care  and  attention  should  be  devoted  to  the  prepa- 
ration of  this  instrument.  For  it  is  this  which  determines 
whether  or  not  the  contract  between  the  parties  will  be  dis- 
posed of  under  the  harmonious  conditions  which  ought  to  sur- 
round the  closing  of  every  transaction  for  the  sale  of  real 
estate.  An  erroneous  notion  persists  among  many  of  those 
who  prepare  instruments  involving  the  sale  of  land,  that  what- 
ever matter  is  omitted  or  not  made  clear  in  the  preliminary 
agreement  can  be  remedied  and  clarified  at  the  time  of  closing. 
The  preliminary  agreement  fixes  the  status  of  all  the  final 
relations  between  the  parties.  Neither  the  vendor  nor  the 
vendee  need  accept  a  land  contract  which  either  enlarges  or 
limits  the  rights  or  obligations  of  either  party  and  is  not  in 
full  compliance  with  the  preliminary  agreement.  If,  as  fre- 
quently occurs,  either  of  the  parties  is  willing  to  have  his  obli- 
gations enlarged  in  the  final  agreement,  difficulty  can  be  and 
often  is  avoided ;  if  not  the  entire  purpose  of  the  preliminary 
agreement  is  nullified.  The  parties  find  it  impossible  to  agree 
on  the  omitted  details  and  needless  and  expensive  litigation  is 
bound  to  be  the  result. 

As  already  indicated,  the  entire  function  of  the  preliminary 
agreement  is  to  show  the  basis  upon  which  the  vendor  and 
vendee  have  come  together;  who  they  are;  what  particular 
property  is  being  sold;  the  price  and  consideration  therefor; 
the  terms  and  time  of  payment. 

When  these  essentials  are  provided  for,  other  details  remain 
to  be  dealt  with  in  the  preliminary  agreement,  such  as  adjust- 
ment of  rentals,  date  of  possession  of  the  property  to  be  given, 
payment  of  assessments  and  other  taxes,  fire  insurance,  and 
many  other  details  certain  to  arise  when  the  transaction  shall 
be  finally  closed. 

The  whole  reason  for  the  necessity  of  providing  for  all  those 
matters  in  the  preliminary  agreement  apart  from  the  legal  re- 


§3] 


IMPORTANCE  OF  PRELIMINARY  AGREEMENT 


quirement,  is  to  create  a  situation  that  is  thoroughly  under- 
stood by  all  concerned.  It  is  to  make  them  give  and  take  when 
they  are  both  freshly  interested  in  the  transaction  and  neither 
bound.  It  is  to  make  them  yield  on  various  points  which  re- 
quire yielding  by  one  side  or  the  other,  when  refusal  to  do  so 
might  overthrow  the  deal.  It  is  intended,  in  short,  to  preclude 
every  possible  cause  for  friction  or  misunderstanding  at  a  later 
date. 

§3.  Details  Which  Should  Be  Settled  by  the  Preliminary 
Agreement. — The  vendor  and  vendee  often  find  cause  for  dif- 
ferences at  the  time  of  closing,  on  the  following  apparently 
simple  matters ;  all  of  which,  where  the  facts  warrant,  should 
be  dealt  with  by  the  preliminary  agreement. 

(a)  As  to  the  nature  of  the  title  or  interest  which  the  vendor 
sells — whether  he  is  the  owner  in  fee  of  the  property  or  de- 
rives his  interest  therein  through  a  first,  second,  or  third  land 
contract  (sub-contracts  so  called) — if  such  an  interest  in 
property  is  not,  in  the  opinion  of  the  vendee  or  his  attorney, 
safe  to  acquire,  the  time  to  determine  it  is  when  the  agreement 
for  its  purchase  is  drafted  and  not  at  the  closing. 

(b)  If  the  vendee  is  satisfied  with  an  interest  of  that  char- 
acter, in  what  manner  shall  he  be  protected  in  case  of  default 
in  the  land  contract  under  which  the  vendor  is  acquiring  his 
interest.  Provision  for  this  should  be  made  in  the  preliminary 
agreement  and  should  be  incorporated  in  the  final  land  con- 
tract. 

(c)  Who  shall  pay  the  taxes  which  accrue  and  become  pay- 
able between  the  time  of  executing  the  preliminary  agreement 
and  the  time  of  closing  the  sale. 

(d)  Who  shall  pay  those  installments  of  assessments  which 
are  payable  subsequent  to  the  execution  of  the  final  contract 
between  the  parties,  but  which  are  due  in  advance. 

(e)  Who  shall  pay  unpaid  assessments,  such  as  paving,  side- 
walk, street  opening  and  sewer. 

(f)  Shall  the  vendor  or  vendee  pay  for  the  water  charges 
which  are  due  and  unpaid  at  the  time  of  closing  or  shall  it  be 
apportioned  between  them. 

(g)  If  the  same  attorney  represents  and  acts  for  both  par- 
ties, who  shall  pay  the  cost  of  his  services. 


4  THE  LAW  OF  LAND  CONTRACTS  [§  3 

(h)  Who  shall  pay  the  cost  of  examining  the  abstract  of 
title. 

(i)  Who  shall  pay  the  cost  of  certifying  the  abstract  of  title, 
and  what  company  shall  certify  the  same. 

(j)  Who  shall  pay  the  mortgage  tax  on  the  land  contract 
and  is  it  to  be  paid  before,  at  the  time  of,  or  after  default. 

(k)  Who  shall  pay  the  cost  of  recording  necessary  instru- 
ments and  incidental  disbursements  therefor. 

(1)  Shall  the  vendee  refund  to  the  vendor  at  the  time  of 
closing  the  unused  portion  of  the  insurance  premium  advanced 
by  the  vendor. 

(m)  If  it  is  not  intended  that  the  vendor  deliver  possession 
of  all  or  part  of  the  property  at  the  time  of  closing,  shall  the 
vendee  pay  interest  on  the  full  balance  due  from  the  vendee  for 
the  time  the  vendee  is  not  enjoying  the  full  use  of  all  or  part 
of  this  property,  from  what  date  shall  payment  of  interest 
be  computed. 

(n)  When  shall  possession  of  all  or  part  of  premises  be  de- 
livered to  the  vendee  by  the  vendor  or  his  tenants  or  lessees. 

(o)  Shall  the  vendor  or  his  tenants  or  lessees  pay  any  rent 
for  the  period  of  his  or  their  occupancy  for  all  or  part  of  the 
premises;  if  so,  how  much. 

(p)  What  form  land  contract  shall  be  furnished  by  the 
vendor,  and  what  provisions  shall  such  land  contract  contain 
other  than  those  already  printed  therein,  or  what  shall  be 
eliminated  therefrom. 

(q)  Shall  the  vendor  furnish  the  vendee  with  a  copy  of  his 
own  land  contract  (in  case  he  is  selling  on  a  second  land  con- 
tract or  sub-land  contract) ,  so  that  the  vendee  may  be  certain 
that  he  will  secure,  when  he  has  fully  paid,  the  equity  or  in- 
terest of  his  vendor. 

(r)  What  kind  of  leases  or  other  agreements  exist  and  what 
are  the  rights  and  obligations  which  the  vendee  is  expected  to 
assume  thereunder. 

(s)  A  date  should  be  specified  prior  to  which  the  vendor 
shall  deliver  the  vendee's  abstract  of  title  to  the  vendee  for 
examination.  A  date  should  be  also  named  prior  to  which  the 
vendee  should  examine  the  title  and  signify  either  his  ac- 
ceptance or  rejection  thereof.    It  should  also  be  specified  that 


§4] 


IMPORTANCE  OF  PRELIMINARY  AGREEMENT 


in  the  event  title  should  be  found  to  be  clouded  or  encumbered 
which  defects  can  be  remedied  by  an  action  to  quiet  title  or 
otherwise,  the  length  of  time  the  vendor  will  be  given  to 
remedy  such  defects. 

Most  of  the  subjcets  above  referred  to  are  controlled  to  some 
extent  by  the  law,  but  our  purpose  here  is  to  suggest  the  neces- 
sity for  setting  forth  as  clearly  as  possible  the  respective  rights 
and  obligations  of  the  parties  at  the  time  of  drawing  the  pre- 
liminary agreement.  Very  often  when  provision  for  some 
necessary  detail  is  not  made  in  the  preliminary  agreement,  the 
layman  will  follow  his  own  misconception  as  to  what  he  deems 
the  law  to  be ;  especially  is  this  true  when  the  true  conception 
of  the  law  will  injure  him  financially. 

§  4.  Conduct  of  Counsel  in  Closing  Transaction  Where  the 
Preliminary  Agreement  Is  Silent  on  Important  Details. — It  is 

surprising  how  often  transactions  involvng  many  thousands  of 
dollars  are  made  between  parties  in  a  loose,  offhand  manner  and 
without  advice  of  counsel,  and  with  nothing  to  indicate  the 
agreement  except  some  carelessly  drafted  receipt  or  obscure 
memorandum,  in  the  expectation  that  when  the  time  of  closing 
arrives,  counsel  will  look  after  and  straighten  out  and  complete 
everything.  Under  such  circumstances,  it  would  be  manifestly 
unfair  for  the  attorney  who  is  called  in  to  close  the  transaction 
to  attempt  to  capitalize  the  omissions  of  the  parties  where  they 
were  made  in  good  faith.  He  should  not,  while  representing 
his  own  client,  act  arbitrarily  towards  the  rights  of  the  other 
side.  He  must  take  what  material  he  has  and  construct  an 
agreement  between  the  parties  in  keeping  with  their  honest 
and  unwritten  intentions.  It  need  hardly  be  said  that  he  is 
not  to  attempt  to  gain  any  undue  advantage  nor  should  any 
client  expect  him  to  do  so. 

When  the  parties  drew  their  agreement  they  were  both  act- 
ing in  good  faith ;  they  assumed  that  they  had  incorporated  all 
that  was  necessary  for  the  time  being.  Doubtless  all  the  essen- 
tial requirements  of  the  law  were  complied  with  and  in  the 
agreement  there  are  present  the  necessary  elements  of  a  valid 
contract.    And  yet  opportunities  for  misunderstanding  remain. 

In  such  a  situation  the  attorney  can  demonstrate  not  only 
his  legal  but  his  business  capacity  as  well,  for  every  difficult 


THE  LAW  OF  LAND  CONTRACTS 


[§* 


situation  can  be  controlled  by  a  just  and  proper  conception  of 
the  respective  rights  and  obligations  of  the  parties.  The  lawyer 
at  such  times  can  ask  much  and  give  little  but  it  is  not  his 
function  to  take  petty  advantage,  to  overreach  or  be  arbitrary. 
Only  a  spirit  of  fairness  and  consideration  will  assist  counsel 
in  accomplishing  the  result  expected. 

§  5.  Counsel  Should  Avoid  Acting  in  Dual  Capacity. — Fre- 
quently when  either  the  vendor  or  vendee  has  the  services  of 
an  attorney  who  regularly  transacts  all  or  most  of  his  business, 
he  brings  the  other  party  to  such  attorney  for  the  purpose  of 
consummating  the  deal.  A  serious  question  of  policy  arises  at 
such  time.  What  position  is  counsel  to  take  under  the  cir- 
cumstances ?  Shall  he  act  in  a  dual  capacity  and  of  course  try 
and  be  just  and  equitable  to  both  sides?  Shall  he  favor  his 
own  client  to  the  detriment  of  the  other?  Or  shall  he  only  act 
for  one  of  the  parties  ? 

The  nature  of  the  transaction  should  invariably  decide  the 
question  for  him.  If  it  is  a  complex  transaction,  if  a  number 
of  issues  are  likely  to  come  up  in  which  the  interests  of  the 
parties  are  or  threaten  to  become  antagonistic  and  conflicting, 
the  answer  is  very  simple.  He  should  act  only  for  one  side. 
If,  on  the  other  hand,  no  complicated  situations  are  likely  to 
arise,  there  can  be  no  reasonable  objection  to  dual  representa- 
tion. Exercise  of  fairness  and  sound  discretion  under  such 
circumstances  will  create  good  will  for  the  attorney  with  both 
sides. 

§  6.  Broker  Not  to  Draw  Agreement. — Unlike  some  of  the 
States,  Michigan  has  no  law  on  her  Statute  books  prohibiting 
laymen  from  preparing  legal  instruments.  So  many  individ- 
uals have  become  engaged  in  the  industry  of  buying  and  selling 
real  estate  on  land  contracts,  or  representing  others  in  such 
transactions  that  the  advisability  of  excluding  everybody  ex- 
cept the  profession  from  drawing  such  instruments  is  a  debata- 
ble question.  But  much  litigation  could  be  avoided  if  no  one 
but  an  experienced  conveyancer  would  prepare  such  instru- 
ments. 

The  matters  involved  in  the  preparation  of  a  preliminary 
agreement,  the  passing  upon  the  marketability  of  the  title,  and 
the  execution  of  the  final  land  contract,  are  very  often  more 


§7] 


IMPORTANCE  OF  PRELIMINARY  AGREEMENT 


complex  than  is  apparent  to  the  layman.  In  nearly  every  trans- 
action there  is  some  phase  that  is  a  little  new  and  a  little  dif- 
ferent from  the  last  one.  The  broker  who  attempts  to  examine 
a  title,  or  pass  one  without  an  examination,  or  encourage  the 
purchase  without  seeing  an  abstract,  not  only  fails  in  his  duty 
as  a  broker,  but  assumes  an  unnecessary  burden  and  responsi- 
bility. Nor  should  he  be  required  or  expected  to  examine  titles 
and  prepare  instruments  for  the  purpose  of  earning  his  broker- 
age charge. 

Though  haste  in  closing  a  transaction  is  inadvisable,  yet  un- 
due procrastination  on  the  part  of  the  attorney  in  rendering 
the  necessary  services  in  the  case,  has  a  tendency  to  destroy 
the  interest  of  the  parties.  So  also  does  overreaching  and  un- 
necessary fault  finding.  Absolute  co-operation  between  the 
broker  and  attorney  is  to  be  sought,  and  the  lawful  interests 
of  the  broker  should  always  be  safeguarded  by  the  attorney. 

§  7.  What  the  Vendor  Is  Entitled  To. — We  can  point  out  only 
some  of  the  essential  matters  which  the  vendor  has  a  right  to 
have  incorporated  in  the  preliminary  and  final  land  contract- 
Matters  of  greater  or  less  importance  will  arise  that  require 
special  consideration,  but  these  vary  in  nearly  every  trans- 
action. 

The  following  suggest  themselves : 

(a)  That  interest  on  all  unpaid  sums  shall  be  computed  from 
and  after  the  date  of  the  execution  of  the  land  contract,  pro- 
vided possession  is  delivered  at  such  time. 

(b)  That  insurance  premiums  advanced  by  the  vendor  for 
the  period  starting  after  possession  is  delivered  to  vendee  shall 
be  refunded  to  the  vendor.  It  is  customary  to  insure  property 
for  one,  two  or  three  years  and  to  pay  the  premium  for  the 
entire  period  in  advance.  If,  for  instance,  the  vendor  has  only 
used  six  months  of  such  premium,  the  vendee  should  refund 
the  amount  representing  the  unused  portion  of  such  premium. 

(c)  That  the  property  shall  be  used  by  the  vendee  in  accord- 
ance with  the  restrictions  which  may  exist  against  the  same, 
and  that  it  be  kept  in  good  repair  by  him. 

(d)  That  the  vendee  shall  assume  any  encumbrances  which 
may  exist  against  the  property,  whether  the  same  be  placed 
thereon  by  the  vendor  or  his  predecessors,  and  that  the  vendee 


g  THE  LAW  OF  LAND  CONTRACTS  [§  7 

shall  join  in  the  execution  of  any  new  mortgage  which  may 
replace  the  old  mortgage  after  its  maturity  and  discharge,  the 
amount,  however,  not  to  exceed  a  stated  sum,  and  never  to 
exceed  the  interest  of  the  vendor  remaining  in  said  property 
at  the  time  of  execution  of  such  new  mortgage;  that  such 
mortgage  shall  be  deemed  a  lien  or  claim  superior  and  prior 
to  the  interest  of  the  vendee  in  the  said  property. 

(e)  That  all  taxes  and  assessments  which  shall  be  levied 
against  the  property  after  its  sale  to  vendee  shall  be  paid  for 
promptly  and  punctually  by  the  vendee ;  and  that  said  vendee 
keep  the  said  property  insured  in  a  sufficient  amount  and  with 
an  insurance  company  to  be  approved  by  the  vendor. 

(f )  That  no  assignment  shall  be  made  by  the  vendee  with- 
out written  notice  thereof  to  the  vendor. 

§  8.  Substitute  for  Non-Assignment  Clause. — For  several 
years  some  of  our  intermediary  courts  have  proceeded  upon 
the  theory  that  no  forfeiture  of  a  land  contract  can  be  declared 
upon  a  violation  of  the  provision  that  the  vendee  shall  not 
assign  or  transfer  any  or  all  of  his  interest  without  the  written 
consent  of  the  vendor.  The  opinion  has  been  held  that  this 
clause  is  not  binding  upon  the  vendee  and  that  the  vendor  can- 
not prevent  the  alienation  of  the  equitable  interest  of  the 
vendee  by  a  provision  of  that  character. 

The  question  has  not  been  squarely  before  the  Supreme 
Court.  But  whatever  position  this  Court  may  take  with  respect 
to  the  validity  of  said  clause,  there  can  be  no  doubt  that  fre- 
quently the  vendor  sells  his  property  with  a  very  small  down 
payment  to  a  vendee  whom  he  deems  financially  and  morally 
responsible,  thereby  relying  not  only  on  the  property  as  se- 
curity for  the  balance,  but  to  a  greater  extent,  on  the  moral 
and  financial  responsibility  of  such  vendee.  Sometimes  also, 
the  friendly  relations  which  may  exist  between  the  vendor  and 
vendee  may  be  the  inducing  cause  to  a  transfer  of  property 
with  a  small  first  payment,  an  inducement  which  disappears 
when  an  assignment  is  made  to  a  person  who  may  be  entirely 
unknown  to  the  vendor,  and  unreliable.  In  cases  of  this  kind 
it  may  therefore  be  deemed  advisable  to  insert  a  clause  in  the 
land  contract  that,  at  the  option  of  the  vendor,  when  any 
assignment  of  property  is  made  by  the  vendee,  the  assignee 


R  9]  IMPORTANCE  OF  PRELIMINARY  AGREEMENT  9 

shall  pay  to  the  vendor  a  certain  portion  of  the  unpaid  balance, 
such  amount  to  be  determined,  of  course,  at  the  time  of  the 
execution  of  the  land  contract.  Such  additional  payment  should 
offset  any  loss  through  the  moral  and  financial  instability  of 
the  prospective  assignee.  This  clause  will,  in  most  cases,  have 
the  same  effect  as  a  non-assignment  clause  in  that  it  affords 
the  vendor  all  the  necessary  protection,  but  removes  from  him 
the  power  of  any  arbitrary  action. 

§  9.  To  What  the  Vendee  Is  Entitled.— (a)  That  possession 
shall  be  given  to  him  on  the  date  of  closing :  if  that  cannot  be 
arranged  that  he  be  allowed  a  reasonable  amount  for  use  and 
occupation  by  the  vendor,  his  tenants  or  lessees  until  posses- 
sion is  delivered. 

(b)  If  the  vendor  has  collected  rentals  from  tenants  in  ad- 
vance, the  vendee  shall  receive  the  unused  portion  of  such 
rentals  from  the  date  of  closing. 

(c)  That  vendor  shall  furnish  an  assignment  of  all  leases 
or  agreements  which  may  affect  the  property,  the  vendee  to 
assume  the  rights  and  obligations  of  the  vendor  thereunder. 

(d)  That  the  vendor  shall  pay  or  make  provision  for  pay- 
ment of  all  taxes  and  assessments  levied  on  the  property  pre- 
ceding the  time  of  sale,  including  any  installments  of  assess- 
ments levied  but  not  paid,  payment  of  which,  however,  extends 
in  the  future. 

(e)  That  vendor  shall  furnish  an  abstract  of  title,  showing 
a  good  and  merchantable  title  in  himself  if  the  ownership  of 
the  property  is  by  fee ;  if  not,  a  merchantable  title  in  the  owner 
from  whom  the  vendor  derives  his  interest. 

(f )  If  the  interest  of  the  vendor  is  acquired  by  a  land  con- 
tract, the  provisions  with  which  the  vendee  is  to  comply  must 
not  be  any  more  strict  than  those  which  vendee  will  ultimately 
have  to  assume  and  which  are  contained  in  the  present  land 
contract;  if  they  are  more  strict  the  vendee  must  be  careful 
that  he  is  fully  protected. 

(g)  If  the  vendor  does  not  own  the  property  in  fee  but  has 
only  a  land  contract  interest,  the  only  way  in  which  to  establish 
the  chain  of  title  or  interest  in  the  property,  would  be  by  the 
vendor  furnishing  to  the  vendee  copies  of  the  land  contract 
under  which  he  himself  is  acquiring  the  property,  and  if  his 


10  THE  LAW  OF  LAND  CONTRACTS  [§  9 

vendor  has  a  similar  interest,  then  also  a  copy  of  such  contract. 
In  addition  thereto  the  vendee  should  have  the  privilege,  as 
often  as  necessary,  to  inspect  the  contract  under  which  his 
vendor  is  purchasing  the  property  for  the  purpose  of  determin- 
ing if  the  payments  are  properly  made  by  him. 

(h)  The  vendor  should  also  enter  into  a  covenant  to  pay 
and  discharge  any  and  all  of  the  obligations  undertaken  by  him 
under  his  own  land  contract,  if  he  has  only  a  contract  interest 
in  the  property,  and  in  the  event  of  his  default,  the  vendee 
should  have  the  right  to  discharge  the  obligations  of  the 
vendor,  the  amount  of  such  payment  automatically  to  consti- 
tute a  credit  on  his  contract.  It  may  also  be  advisable  to  pro- 
vide that  default  on  the  part  of  the  vendor  for  a  certain  number 
of  times  shall  subrogate  the  vendee  to  all  the  rights  of  the 
vendor  in  the  vendor's  contract. 

(i)  When  the  length  and  character  of  the  tenancies,  and 
the  rentals  received  are  inducements  for  the  purchase  of  the 
property,  the  vendee  should  receive  a  statement  signed  by  the 
vendor,  giving  the  names,  the  amounts  of  rental,  and  the  nature 
of  the  tenancies. 

(j)  Interest  on  any  mortgage  which  the  vendee  may  have 
to  assume  eventually  when  the  vendor's  interest  in  the  property 
up  to  the  amount  of  such  mortgage  has  been  paid  shall  not 
exceed  the  interest  payable  under  the  terms  of  the  land 
contract. 

(k)  That  the  vendor  shall  discharge  and  pay  all  payments 
of  principal  and  interest  on  any  mortgage  which  may  exist 
against  the  property,  until  the  vendee's  obligation  under  the 
land  contract  has  been  reduced  to  the  amount  of  the  mortgage ; 
and  that  payments  on  land  contract  should  be  suspended  if 
the  vendor  defaults  in  such  payments,  the  vendee  reserving  the 
right  to  apply  the  payments  due  from  him  towards  reducing 
or  discharging  the  mortgage. 

(1)  That  if  the  vendor  has  had  erected  any  new  building 
within  a  period  of  sixty  days  preceding  the  time  of  sale  to  the 
vendee,  some  definite  assurance  either  by  way  of  written  waiv- 
ers of  mechanics'  liens  or  otherwise  should  be  furnished  the 
vendee  to  avoid  the  possibility  of  the  vendee  becoming  involved 
in  any  litigation  by  reason  thereof. 


§  91  IMPORTANCE  OF  PRELIMINARY  AGREEMENT  H 

(m)  That  all  insurance  policies  covering  the  buildings  shall 
set  forth  the  nature  of  the  vendee's  interest  in  the  property, 
and  the  amount  of  the  insurance  carried  should  be  sufficient  to 
cover  the  interest  of  the  vendee  as  well  as  the  vendor  and 
mortgagee  or  mortgagees. 


CHAPTER  II 

STATUTE  OF  FRAUDS 
SUFFICIENCY  OF  THE  PRELIMINARY  AGREEMENT 

ORAL  CONTRACTS  PARTLY  PERFORMED 

MISCELLANEOUS 

§  10.  The  Statute  of  Frauds — General  Considerations. 
§  11.  Auction  Sales — Sufficiency  of  Memorandum. 

8  12.  Statute  of  Frauds — What  Contracts  Affected  by. 

S  13.  Agreements  Pertaining  to  Real  Estate  Held  Not  Within  Statute  of 
Frauds. 

9  14.  Statute  of  Frauds  Surrender  or  Release  of  Interests. 

§  15.  The  Memorandum  May  Consist  of  Letters,  Telegrams  and  Detached 

Writings. 

9  16.  Aiding  Memorandum  by  Parol  Evidence. 

9  17.  Provisions  of  the  Preliminary  Contract. 

8  18.  Essential  Elements  of  Preliminary  Contracts  for  Sale  of  Real  Estate. 
§  19.  Effect  of  Void  Agreements  Under  Statute  of  Frauds. 

9  20.  Effect  of  Part  Performance  of  Oral  Agreement  to  Sell  Real  Estate — 

General  Considerations. 
9  21.  Actions  at  Law  on  Verbal  Contracts  Partly  Performed. 
9  22.  When  Disposal  of  Land  Contract  in  Escrow  Advisable. 

8  23.  Loss  by  Fire  Pending  Purchase. 

9  24.  Sufficiency  of  Tender  of  Performance. 

9  25.  Pleadings  and  Briefs  in  Late  Michigan  Cases. 

OGOOSHEVITZ  v.  SAMPSON,  211  Mich.  184— 

(a)  Statement  of  Fact. 

(b)  Brief  for  Plaintiff. 

(c)  Brief  for  Defendant. 

COOPER  v.  PIERSON,  212  Mich.  659— 

(a)  Statement  of  Fact. 

(b)  Brief  for  Plaintiff. 

(c)  Brief  for  Defendant. 

§  10.  The  Statute  of  Frauds — General  Considerations. — By 

reason  of  the  statute  of  frauds,  all  contracts  for  the  sale  of 
real  estate  are  absolutely  void  unless  in  writing  and  signed  by 
the  vendor.  Generally  speaking,  no  oral  contract  has  any  value 
whatever  except  that  in  a  certain  class  of  cases  an  oral  contract 


10] 


STATUTE  OF  FRAUDS 


13 


which  has  been  partially  performed  may  be  enforced  in  a  court 

of  equity.1 

The  statute  of  frauds  provides2  that  every  contract  for 
leasing  for  a  longer  period  than  one  year  or  for  the  sale  of  lands 
or  any  interest  in  lands  shall  be  void  unless  the  contract  or 
some  note  or  memorandum  thereof  be  in  writing  and  signed 
by  the  party  by  whom  the  lease  or  the  sale  is  to  be  made, 
or  by  some  person  thereunto  by  him  lawfully  authorized  by 

writing. 

The  Michigan  Supreme  Court  has  construed  this  statute  in 
many  cases  3  and  has  uniformly  held  that  such  contracts  are 


1.  See   Sec.   20,   Post.     Effect   of 
oral  agreement  partially  performed. 

2.  Compiled     Laws,     1915,     Sec. 
11977.      "Every    contract    for    the 
leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  lands,  or 
any  interest  in  lands,  shall  be  void 
unless  the  contract,  or  some  note  or 
memorandum  thereof,  be  in  writing 
and  signed  by  the  party  by  whom 
the  lease  or  sale  is  to  be  made,  or 
by  some  person  thereunto  by  him 
lawfully     authorized     by     writing. 
Compiled    Laws,    1915,  Sec.    11975. 
No    estate     or    interest    in    lands 
other  than  leases  for  a  term  not  ex- 
ceeding one  year,  nor  any  trust  or 
power  over  or  concerning  lands  or 
in    any    manner    relating    thereto, 
shall  hereafter  be  created,  granted, 
assigned,   surrendered  or   declared 
unless  by  act  or  operation  of  law 
or    by    a    deed    or    conveyance    in 
writing,    subscribed    by    the    party 
creating,    granting,    assigning,    sur- 
rendering or  declaring  the  same,  or 
by  some  person  thereunto  by  him 
lawfully  authorized  by  writing." 

3.  Sutton  v.  Rowley,  44  Mich.  112. 
Holding  that  a  verbal  agreement 
to  pay  for  completing  certain  hy- 
draulic   work   by    conveying   a   lot 


was  void  and  unenforceable.    Hilde- 
brand   v.   Nippeling,    40   Mich.    646. 
Where  a  son  had  a  claim  against 
his  father  and  the  father  verbally 
promised  to  him  a  certain  farm  but 
did  not  do  so,  upon  suit  by  the  son. 
against  the  father's  estate  for  the 
amount  of  his  claim,  held  that  the 
son  could  not  show  the  value  of  the 
farm    as    a    measure    of    damages, 
since   a  verbal   promise  to  convey 
land  is   void.     Jesse  Scott  v.   Jon- 
athan   T.    Bush,    26    Mich.    418.     A 
verbal  agreement  for  the  purchase 
of    lands,   with    a    stipulation    that 
money  paid  down  to  apply  upon  the 
purchase,   may  be   retained   if   the 
purchaser  fails  to  complete  the  bar- 
gain, is  all  a  single  contract,  and 
void   under  the   statute   of  frauds, 
and  if  possession  of  the  land  is  not 
given,    and    nothing    done    in    part 
performance,    the    money    so    paid 
may  be   recovered   back,   although 
the   vendor   is   willing,    and   offers 
to  convey.     A  parol  agreement  be- 
tween A  and  B  that  if  A  will  deed 
certain  lands  to  B's  son,  B  will  give 
A  his  note  for  a  specified  amount, 
is   void,   and  A,   after  deeding  the 
land  as  agreed,  cannot  maintain  an 
action  against  B  upon  such  agree- 
ment or  upon  any  implied  promise. 


14 


THE  LAW  OF  LAND  CONTRACTS 


[§io 


void  unless  executed  in  compliance  with  the  statute,  the  only 
exception  to  the  general  rule  being  verbal  contracts  which 
have  been  partly  performed  by  one  of  the  parties  to  the  con- 
tract. Where  money  has  been  paid  under  a  void  contract  for 
the  purchase  of  lands,  it  may  be  recovered  in  an  action  at  law 
by  the  vendee.4 

A  complete  and  binding  contract  under  the  statute  of  frauds 
may  be  gathered  from  letters,  writing  or  telegrams  between 
the  parties  if  so  connected  with  each  other  that  they  may  be 
construed  together  to  constitute  one  transaction,  a  subject 
more  fully  treated  elsewhere  herein.6 


If  any  promise  at  all  Is  implied 
It  is  against  the  grantor  himself. 
Little  v.  Needham,  39  Mich.  147. 
A  parol  contract  to  procure  a  con- 
veyance of  an  equity  of  redemption 
held  by  a  third  person,  is  void. 
Rowden  v.  Dodge,  40  Mich.  697. 
And  so  is  a  parol  agreement  for 
a  reservation  or  exception  of  part 
of  the  realty  described  in  a  deed. 
Detroit,  Hillsdale  &  Ind.  R.  R.  Co. 
v.  Forbes,  30  Mich.  165.  Or  to  sur- 
render or  to  release  a  parcel  of  land 
mentioned  in  an  executory  contract 
for  sale.  McEwan  v.  Ortman,  34 
Mich.  325.  A  parol  agreement  to  ac- 
cept a  deed  of  land  in  part  payment 
of  a  precedent  debt  is  void,  and  pay- 
ment of  part  of  the  debt  in  money 
and  the  discharge  by  the  debtor  of 
a  mortgage  on  the  land,  the  legal 
title  to  which  was  in  a  third  per- 
son, is  not  such  part  performance 
as  will  take  the  case  out  of  the 
statute.  Colgrove  v.  Solomon,  34 
Mich.  494.  Selecting  swamp  lands 
In  pursuance  of  a  parol  agreement 
by  which  the  person  making  the 
selection  was  to  have  an  interest 
therein,  is  not  such  part  perform- 
ance as  will  take  the  case  out  of 
the  statute.  Webster  v.  Gray,  37 
Mich.  37;  Dwight  v.  Cutler,  3  Mich. 


573;  Bomier  v.  Caldwell,  8  Mich. 
463;  Wright  v.  DeGroff,  14  Mich. 
164;  Holland  v.  Hoyt,  14  Mich.  242; 
Climer  v.  Hovey,  15  Mich.  22;  Hog- 
sett  v.  Ellis,  17  Mich.  364-5;  Abell 
v.  Munson,  18  Mich.  312;  Palmer 
v.  Williams,  24  Mich.  331;  Scott  v. 
Bush,  26  Mich.  418-29  Mich.  523; 
Colgrove  v.  Solomon,  34  Mich.  499- 
500;  Little  v.  Needham,  39  Mich. 
147;  Curtis  v.  Abbie,  39  Mich.  441; 
Hillebrand  v.  Nibbelink,  40  Mich. 
646;  Nims  v.  Sherman,  43  Mich. 
50;  Ayers  v.  Gallup,  44  Mich.  13; 
Sutton  v.  Rowley,  44  Mich.  112; 
Jackson  v.  Evans,  44  Mich.  510; 
Demoss  v.  Robinson,  46  Mich.  62; 
Kelly  v.  Kelly,  54  Mich.  30;  Dick- 
inson v.  Wright,  56  Mich.  46;  War- 
dell  v.  Williams,  62  Mich.  55;  Mc- 
Donald v.  Maltz,  78  Mich.  685; 
Ducett  v.  Wolf,  81  Mich.  312;  Bart- 
lett  v.  Bartlett,  103  Mich.  296;  Tay- 
lor v.  R.  D.  Scott  &  Co.,  149  Mich. 
525. 

4.  See  Sec.  19,  Post.  Effect  of 
void  contract.  Adler  v.  Kalus,  190 
Mich.  86;  Demoss  v.  Robinson,  46 
Mich.  62. 

5.  See  Sec.  15  Post.  The  memo- 
randum may  consist  orally  of  let- 
ters if  they  are  connected  by  ref- 


§11] 


STATUTE  OF  FRAUDS 


15 


§  11.  Auction  Sales — Sufficiency  of  Memorandum.— When- 
ever any  sale  of  lands  or  interest  therein  shall  be  sold  at  public 
auction,  it  is  not  necessary  that  either  the  vendor  or  the  vendee 
shall  sign  any  written  memorandum  of  the  sale.  It  is  suf- 
ficient to  bind  both  parties,  if  at  the  time  of  the  sale,  the  clerk 
of  the  auction  enter  in  a  sale  book  a  memorandum  specifying 
the  description  and  price  of  the  land  sold  and  the  name  of  the 
purchaser,  together  with  auction  bills,  catalog  or  written  or 
printed  notice  of  the  sale  containing  the  name  of  the  person 
on  whose  account  the  sale  is  made  and  the  terms  of  such  sale.6 

Since  the  statute  does  not  specify  any  particular  class  of 
public  sales  at  auction,  there  seems  to  be  no  reason  why  the 


erence    express    or    implied    so    as 
to    show    on    their   face    that   they 
are    related    to    the    same    subject 
matter,     but    such     relation     must 
appear   from    the    contents    of   the 
letter     or     by     express     reference 
therein  to  each  other.    Hickman  v. 
Cheney,    152    Mich.    217,    p.    255-188 
N.    W.    993.      Holding    various    let- 
ters   between    the    parties    to    be 
sufficient  to   constitute   a   contract 
under  the   statute  of  frauds.     See 
also  Ryan  v.  United  States,  136  U. 
S.  68  (84-86).     In  this  case  certain 
letters  and  telegrams  between  the 
parties  were  held  to  constitute  an 
agreement  obligating  the  owner  to 
sell    certain    lands   in   the    city   of 
Sault  Ste.   Marie  as  a  prospective 
site   for   Fort  Brady.     Raubitschek 
v.  Blank,  80  N.  Y.    479;    Bayne  v. 
Wiggins,   139   U.    S.    210-35,   L.   Ed. 
144;    Swollow   v.    Strom,   83    Minn. 
87;    85    N.   W.    942;    Walsh   v.   Bra- 
nard  (Minn.  1905),  103  N.  W.  1031; 
Seymour  v.  Warren,  179  N.  Y.   1;  N. 
N.  E.  260;    Gates  v.  Paul,  117  Wis. 
170;  94  N.  W.  55;  Lyman  v.  Robin- 
son, 96  Mass.    14;   Uran  v.  Coates, 
109  Mass.    587;  Williams  v.  Smith, 
161   Mass.    48;    Lee  v.   Butler,   167 
Mass.  426;   Hibbard  v.  Hatch  Stor- 


age Battery  Co.,  174  Mass.  296; 
Hickey  v.  Dale,  66  N.  H.  336;  Otis 
v.  Payne,  86  Tenn.  663;  Wills  v. 
Rose,  77  Ind.  1;  Thames  Sand  & 
Title  Co.  v.  Deville,  100  Ind.  309; 
Gustin  v.  Davis,  129  Ind.  472;  Kings- 
bury v.  Burnside,  58  111.  310;  Knight 
v.  Cooley,  34  Iowa  218;  Matteson 
v.  Scoffield,  26  Wis.  671;  Hickman 
v.  Cheney,  155  Mich.  217  (255); 
118  N.  W.    993. 

6.  By  an  amendment  to  the  stat- 
ute of  frauds  (Act  No.  83,  Public 
Acts  of  1917),  the  following  proviso 
was  added:  "That  whenever  any 
lands  or  interest  in  lands  shall 
be  sold  at  public  auction  and  the 
auctioneer  or  the  clerk  of  the 
auction  at  the  time  of  the  sale 
enters  in  a  sale  book  a  memoran- 
dum specifying  the  description  and 
price  of  the  land  sold  and  the  name 
of  the  purchaser,  such  memorandum, 
together  with  the  auction  bills,  cat- 
alog or  written  or  printed  notice 
of  sale  containing  the  name  of  the 
person  on  whose  account  the  sale 
is  made  and  the  terms  of  sale,  shall 
be  deemed  a  memorandum  of  the 
contract  of  sale  within  the  meaning 
of  this  section." 


16  THE  LAW  OF  LAND  CONTRACTS  [§  H 

same  should  not  apply  and  control  in  both  judicial  sales  as 
well  as  those  where  the  individual  voluntarily  sells  his  property 
at  public  auction. 

§12.  Statute  of  Frauds — What  Contracts  Affected  By.— 

"The  statute  covers  every  imaginable  case  where  an  interest 
in  land  is  divested  by  any  act  of  the  party  concerned.  It 
applies  to  surrenders  as  well  as  transfers  and  excludes  the  idea 
that  there  can  be  any  waiver  unless  it  is  written."7  This  the 
statute  has  been  held  to  apply  to  oral  contracts  of  partnership 
for  the  purpose  of  dealing  in  land  and  a  contract  of  this  char- 
acter has'  been  held  void  under  the  statutes,8  the  statute  has 
also  been  held  to  apply  to  an  equity  of  redemption,9  to  ease- 
ments in  land,10  to  a  right  of  way  across  land,11  to  an  agree- 
ment for  permission  to  extend  a  spur  track  across  land.12  It 
also  applies  to  the  sale  of  standing  timber  and  such  a  sale 
unless  in  writing  is  void,13  however,  a  verbal  agreement  for  the 
sale  of  standing  timber  has  been  construed  by  the  courts  to 
give  to  the  assignee  a  license  to  enter  and  to  cut  the  standing 
timber  which  license  is  valid  until  revoked.14 

7.  The   statute  of  frauds  covers  fully  authorized  by  writing.    Whit- 

every    imaginable    case    where    an  ing  v.  Butler,  49  Mich.  144. 

interested  is  divested  by  any  act  of  8.  An   oral    contract   of   partner- 

the  party  concerned.    It  applies  to  ship  for  the  purpose  of  dealing  In 

surrenders  as  well  as  transfers,  and  lands  is  void  under  the  statute  of 

excludes   the   idea   that   there   can  frauds.     Nestor    v.     Sullivan,    147 

be  any  waiver    (if  there   be   such  Mich.  493. 

an  act  concerning  lands),  unless  it  9.  Nims  v.  Sherman,  43  Mich.  51; 

is  written.     The  language  used  is  Rawson  v.  Dodge,  40  Mich.  690. 

"No    estate    or    interest    in    lands,  10.  Miller  v.  Reeves,  1  Mich.  110. 

other   than   leases   for  a  term   not  u.  rj.  H.  R.  R.  Co.  v.  Forbes    30 

exceeding  one  year,  nor  any  trust  Mich.  175. 

or  power  over  or  concerning  lands,  12.  Dumner  v.  V.  S.  Gypsum  Co., 

or  in  any  manner  relating  thereto,  153  Mich.  622. 

shall  hereafter  be  created,  granted,  13.  Russei    v.    Meyers,    32    Mich. 

assigned,  surrendered  or  declared,  522;  Johnson  v.  Moore,  28  Mich.  3. 

unless  by  act  or  operation  of  law,  14.  Spaulding    v.    Archobold,    52 

or  by  a  deed  or  conveyance  in  writ-  Mich.  365;   Greeley  v.  Stellison,  27 

ing.  subscribed  by  the  party  creat-  Mich.  153;  Sovereign  v.  Orlman,  47 

ing,  granting,  assigning,  surrender-  Mich.   181;    Wallace  v.  Kelley,   148 

ing   or  declaring  the   same,   or  by  Mich.    338;     Newberry    v.    Chicago 

some  person  thereunto  by  him  law-  Lumber  Co.,  154  Mich.  84. 


§  13]  STATUTE  OF  FRAUDS  17 

§  13.  Agreements  Pertaining  to  Real  Estate  Held  Not  With- 
in Statute  of  Frauds. — The  statute  of  frauds  in  requiring  con- 
tracts for  the  sale  of  or  landed  interests  to  be  in  writing  con- 
templates transactions  between  principals  and  does  not  cover 
a  bargain  between  a  principal  and  his  agent,  whereby  the  latter 
is  to  be  paid  for  his  services  in  obtaining  from  the  sale  of  land 
a  certain  proportion  of  the  profits  under  subsequent  sale,16 
nor  does  the  statute  of  frauds  apply  to  an  agreement  made 
between  parties  as  to  how  much  each  should  contribute  to  the 
purchase  money  to  be  paid  for  the  purchase  of  land,16  nor  is  an 
oral  agreement  to  divide  the  profits  on  the  purchase  or  resale 
of  real  property  within  the  statute  where  the  interests  claimed 
by  the  defendant  was  by  way  of  compensation,17  the  legal 
principle  deducible  from  these  holdings  seems  to  be  that  where 
the  agreement  relates  to  a  division  of  the  proceeds  from  the 
sale  of  land  or  any  interest  therein,  it  will  not  be  within  the 
statutes  and  therefore  enforceable. 

§  14.  Statute  of  Frauds  Surrender  or  Release  of  Interests. — 

In  general  it  may  be  stated  that  any  surrender  or  release  of 
a  vested  interest  in  real  estate  whether  it  is  by  land  contract 
or  deed  must  be  in  writing,  otherwise  under  the  statute  of 
frauds  the  same  will  be  void.  The  statute  using  the  language 
"Subscribed  by  the  party  creating,  granting,  assigning,  sur- 

Agreements  Pertaining  to  Real  cover   a   bargain   between    a    prin- 

Estate  Held  Not  Within  cipal   and  his   agent,  whereby   the 

Statute  of  Frauds.  latter  is  to  be  paid  for  his  services 

15.  "An  oral  agreement  to  divide  ln  obtaining  lands,  a  certain  pro- 
the  profits  on  the  purchase  and  re-  portion  of  the  profits  on  their  sub- 
sale  of  real  property,  where  the  sequent  sale."  Carr  v.  Leavitt,  54 
interest  claimed  by  defendant  was  Mich.  540. 

by  way  of  compensation  for  serv-  17.  "An  oral  agreement  between 

ices  rendered  in  removing  houses  four  persons  who  were  interested 

and   relocating  them,   and   not   for  in  an  estate  of  a  decedent,  and  who 

any  interest  in  lands,  is  not  within  entered  into  a  written  contract  to 

the  statute  of  frauds."     Thompson  buy     the     dower     and     homestead 

v.  Hurson,  201  Mich.  685.  rights   of   the   widow,   that   one   of 

16.  "The  statute  of  frauds  in  re-  the  four  should  pay  $500  and  one- 
quiring  contracts  for  the  sale  of  fourth  of  the  amount  to  be  given 
lands  or  landed  interests  to  be  in  the  widow,  was  not  void  under  the 
writing,  contemplates  transactions  statute  of  frauds."  Stevens  v. 
between    principals;     it    does    not  Jackson,  180  Mich.  131. 


18 


THE  LAW  OF  LAND  CONTRACTS 


[§14 


rendering,  or  declaring  the  same,"  hence  where  a  grantor  in  a 
deed  has  in  writing  reserved  the  right  to  repurchase  within 
five  years,  this  right  cannot  be  surrendered  verbally,18  this  rule 
has  been  applied  to  the  interests  of  a  vendee  under  a  land  con- 
tract even  though  the  contract  was  wholly  executory  and 
nothing  has  been  done  under  it. 

In  such  an  instrument  the  interest  of  the  vendee  thereunder 
cannot  be  surrendered  or  transferred  except  in  writing,19  as 
against  the  foregoing  decision  it  has  been  held  that  where  the 
vendee  with  the  consent  of  the  vendor  pursues  a  course  of  con- 
duct inconsistent  with  the  retention  of  any  interest  in  the 
premises  and  the  rights  of  third  parties  have  intervened,20  a 
surrender  or  release  of  the  property  will  be  held  to  have  been 


18.  Grover  v.  Buck,  34  Mich.  519. 

19.  It  is  not  competent  in  de- 
fense to  a  promissory  note  given 
for  a  part  of  the  price  named  in 
a  written  contract  for  the  purchase 
of  lands,  to  show  that  the  parties 
to  the  land  contract  had  an  oral 
arrangement  at  the  time  the  note 
and  contract  were  made,  that  the 
purchaser  was  to  have  the  option 
of  retaining  the  contract  and  pay- 
ing the  note,  or  surrendering  the 
contract  and  thereby  discharging 
his  liability  on  the  note;  this  would 
be  to  import  into  a  written  con- 
tract a  verbal  stipulation  quite  in- 
consistent with  its  terms.  Such 
a  stipulation  as  was  here  sought  to 
be  shown  would  be  void  under  the 
statute  of  frauds  unless  in  writing, 
so  that  the  offer  was  not  merely 
to  show  by  parole  a  change  in  the 
terms  of  a  written  contract,  but 
to  show  such  an  agreement  as  could 
not  under  any  circumstances  have 
been  made  by  parol.  John  Mc- 
Ewan  v.  Charles  L.  Ortman,  34 
Mich.  324. 

An  attempt  to  surrender  a  land 
contract  by  delivering  it  to  one  of 


the  vendors  upon  his  suggestion 
that  he  will  be  satisfied  to  accept 
the  contract  and  "let  the  interest 
go"  but  will  have  to  consult  the 
other  vendor,  is  uneffectual  without 
the  vendor's  consent.  The  interest 
of  contract  purchasers  in  land  can- 
not be  surrendered  by  parol.  Gru- 
now  v.  Salter,  118  Mich.  148. 

20.  In  this  state  the  doctrine  of 
estoppel  cannot,  however,  be  ap- 
plied for  the  purpose  of  conveying 
title.  Hoyes  v.  Livingston,  34 
Mich.  388.  It  is  true,  as  held  in 
Sullivan  v.  Dunham,  supra,  that  the 
statute  of  frauds  in  providing  that 
a  surrender  of  any  interest  in  lands 
must  be  in  writing,  does  not  pre- 
vent one  who  has  given  back  a  land 
contract  held  by  him  in  order  that 
the  land  may  be  conveyed  to  an- 
other, from  recovering  the  consid- 
eration for  which  he  gave  it  up, 
as  by  bringing  suit  he  ratifies  the 
conveyance,  and  precludes  himself 
from  claiming  any  interest  in  the 
lands.  In  the  present  case  the 
land  was  not  received  back  by  the 
grantor;  nor  did  he  or  his  grantee 
make  anv  sale  of  it  to  a  third  party, 


§14] 


STATUTE  OF  FRAUDS 


19 


made  by  operation  of  the  law.21  Thus  where  a  vendee  agreed 
with  his  vendor  orally  that  he  would  surrender  his  interest  in 
the  premises  and  rent  them  of  the  vendor  followed  by  the 
actual  payment  of  rent  as  a  tenant,  was  held  to  be  a  sufficient 


or  attempt  to  do  so.  There  was, 
therefore,  no  surrender  by  opera- 
tion of  law. 

Instances   of   Surrender  by   Opera- 
tion of  Law 

21.  A  lessee,  in  violation  of  his 
covenant  not  to  assign  the  lease  or 
sublet  the  leased  premises  without 
the  written  consent  of  the  lessor, 
assigned  the  lease.  The  assignee 
made  a  second  assignment,  and,  at 
the  request  of  the  lessee,  the  lessor 
consented  to  the  occupancy  of  the 
premises  by  the  second  assignee, 
coupled  with  the  statement  that  she 
should  look  to  the  lessee  for  the 
rent.  The  second  assignee  arranged 
to  sell  his  interest  in  the  lease,  and 
the  proposed  purchaser  and  the 
lessee,  the  latter  representing  the 
second  assignee,  called  upon  the 
lessor,  who,  as  she  testified  in  an 
action  brought  by  her  against  said 
proposed  purchaser  to  recover  rent 
subsequently  accruing,  made  an 
oral  lease  of  the  premises  to  him, 
while  he  testified  that  she  con- 
sented to  his  occupancy,  but  told 
the  lessee  that  she  should  look  to 
him  for  the  rent.  The  lessee  testi- 
fied that  the  lessor  said  she  was 
satisfied  to  let  the  proposed  pur- 
chaser take  the  place  of  the  second 
assignee  so  long  as  he  paid  the 
rent,  and,  if  not  paid  by  him,  she 
should  look  to  the  lessee  for  It. 
The  second  assignee  thereupon  sur- 
rendered the  premises  to  the  pro- 
posed purchaser.  And  it  is  held 
that  these  negotiations  and  circum- 


stances may  have  amounted  to  a 
surrender  of  the  term,  and  a  leas- 
ing to  the  proposed  purchaser, 
which  questions  were  properly  sub- 
mitted to  the  jury.  Youell  v.  Krid- 
ler,  105  Mich.  344. 

A  by  deed  leased  premises  to  B, 
who  afterwards  assigned  the  lease 
to  C.  A  assented  to  the  assign- 
ment, and  agreed  by  parol  to  ac- 
cept C  as  his  tenant,  and  to  look 
to  him  for  the  rent.  Held,  that 
there  had  been  a  sufficient  sur- 
render of  the  lease  by  operation  of 
law,  under  the  statute  of  frauds, 
and  that  A  could  not  afterwards 
maintain  covenant  against  B  for  the 
rent.  Logan  v.  Anderson,  No.  2 
Douglas   100. 

Plaintiff  leased  lands  to  W  for 
mining  purposes;  W  executed  a 
sublease  to  defendant  and  then  as- 
signed his  interest  thereunder  to 
plaintiff.  Soon  thereafter  a  cor- 
poration was  formed  to  operate  the 
mine,  to  which  the  sublease  was 
assigned  by  defendant.  A  number 
of  written  agreements  changing  the 
terms  of  the  sublease  were  made 
between  plaintiff  and  the  corpora- 
tion, of  which  defendant  had 
knowledge,  he  being  an  officer  of 
the  corporation,  but  to  which  his 
assent  was  not  requested,  and  no 
demand  was  made  on  him  for  any 
payments  under  the  lease  for  eleven 
years,  when  this  action  was  brought 
to  recover  the  same.  Held,  that 
the  lease  was  surrendered  by  oper- 
ation of  law,  as  to  defendant, 
plaintiff  having   accepted   the   cor- 


20 


THE  LAW  OF  LAND  CONTRACTS 


[§14 


surrender  of  the  contract  by  operation  of  the  law.22  It  has 
also  been  held  that  where  a  party  had  entered  into  a  contract 
to  purchase  a  tract  of  real  estate  for  $20,000,  paying  $1,000 
down,  the  deeds  having  been  deposited  in  escrow  in  a  bank  to 
be  delivered  upon  the  payment  of  the  remainder  of  the  purchase 
price,  that  the  statute  of  frauds  would  require  a  release  of 
the  interest  of  the  vendee  in  such  contract  to  be  in  writing 
before  the  same  could  be  released  or  surrendered.23  Where, 
however,  a  husband  holding  a  piece  of  real  estate  with  his  wife 
as  vendees  under  a  land  contract  directed  upon  the  final  pay- 
ment of  said  contract  that  the  deed  to  such  property  should 
be  made  to  his  wife  individually  instead  of  to  him  and  there- 
after he  acquiesced  in  such  transaction  for  a  period  of  seven 
years  or  more,  he  will  be  estopped  from  claiming  any  interest 
in  such  property  by  reason  of  having  formerly  held  the  same 
with  his  wife  by  entireties.24 

§  15.  The  Memorandum  May  Consist  of  Letters,  Telegrams 
or  Detached  Writings. — Where  an  offer  clearly  and  explicitly 
contains  the  essentials  required  by  the  statute — namely,  a 
description  of  the  land,  an  offer  to  sell  at  a  specified  price  and 
the  time  or  times  and  manner  when  the  payments  of  the 
price  are  to  be  made,  and  when  such  offer  is  followed  by  an 
unqualified  acceptance,  written,  signed  and  delivered  either  to 
the  postal  authorities,  or  to  a  telegraph  company  for  trans- 
mission, a  valid  contract  results  and  both  parties  will  be 
bound.25 


poration   as  her  tenant.     Gingrass 
v.  Mather,  128  Mich.  582. 

Where  the  vendee  went  to  the 
vendor  and  turned  over  his  con- 
tract to  him  without  any  execution 
of  any  written  release  or  surrender 
for  the  purpose  of  permitting  the 
vendor  to  sell  to  a  third  person,  the 
court  held  that  by  his  conduct  the 
vendee  had  acquiesced  in  what  the 
vendor  proposed  and  was  precluded 
from  asserting  any  farther  rights 
under  the  contract.  Sullivan  v. 
Dunham,  42  Mich.  521. 


22.  Underwood  v.  Slaght,  213 
Mich.  391. 

23.  Waller  v.  Lieberman,  211 
Mich.  441.  To  the  effect  that  the 
interest  of  a  contract  purchaser  in 
land  can  be  surrendered  by  parol, 
see  also  McLaughlin's  Estate,  126 
Mich.  1. 


24.  Steven     v. 
Mich.  560-567. 


Wackeman,     213 


25.  Corning  v.  Loomis,  111  Mich. 
23.  Defendant  wrote  to  plaintiff, 
offering  to   purchase   certain  land 


§151 


STATUTE  OF  FRAUDS 


21 


for  $250.00  payable  $25.00  at  a  speci- 
fied date,  and  $25.00  every  six 
months  after  the  first  payment, 
stating  that  he  would  improve  the 
premises  $50.00  worth  the  first 
year,  and  would  set  out  fruit  trees. 
Plaintiff  answered  accepting  the 
terms  of  the  offer,  agreeing  to 
charge  defendant  with  the  land 
upon  his  books,  to  credit  him 
with  all  payments,  and  to  give  a 
deed  when  payments  were  com- 
pleted. A  subsequent  letter  from 
plaintiff  to  defendant  had  indorsed 
thereon  the  terms  of  the  contract 
as  proposed  by  defendant.  Held, 
that  the  writings  constituted  a 
valid  contract  of  sale.  Word  v. 
Davis,  154  Mich.  413.  Holding  that 
a  certain  offer  was  withdrawn  be- 
fore acceptance.  Wilcox  v.  Cline, 
70  Mich.  519.  The  contract  sought 
to  be  enforced  reads  as  follows:  I 
will  sell  lots  1,  2,  3,  4,  5,  6,  7  and  8 
of  outlet  193,  Rivard  Farm,  Detroit. 
Wayne  Co.,  Mich.,  for  $17,500.00 
payable  $8,000.00  cash,  balance  $2,- 
500.00  per  annum,  with  interest  an- 
nually from  April  1,  1887,  at  five 
per  cent.  Upon  payment  of  pro 
rata  amount,  lots  to  be  released 
from  mortgage  for  purchase  money 
payments  may  be  made  by  pro  rata 
amounts  at  any  time,  on  any  lot  or 
lots  of  subdivision  with  interest  at 
five  per  cent  to  time  of  payment, 
or  any  of  above  payments  may  be 
made  at  any  time  before  due.  Pay- 
ments to  be  made  to  David  Preston, 
banker,  and  releases  to  be  had 
through  him  upon  such  payments. 
This  option  is  given  to  Alfred  F. 
Wilcox  until  April  1,  1887,  and,  if 
not  then  accepted,  to  be  void.  Geo. 
T.  Cline,  Bellefontaine,  Ohio,  Feb- 
ruary 1,  18S7.  It  is  hereby  agreed 
by  both   parties  to  the  above  that 


the  above  agreement  shall  not  be 
recorded.  Then  complainant  wrote 
as  follows:  I  have  decided  to,  and 
do  hereby  accept  your  written  pro- 
posal of  February  1,  1887,  to  sell 
me  lots  1,  2,  3,  4,  5,  6,  7  and  8,  of 
outlot  193,  Rivard  Farm,  in  this 
city,  and  am  prepared  to  comply 
with  the  terms  of  said  proposal. 
Will  you  forward  deed  to  Mr.  Pres- 
ton, or  some  one  here,  for  delivery, 
on  receipt  of  the  deed,  payment  and 
mortgage  specified  in  your  proposal, 
or  how  will  you  arrange  for  the 
transfer.  Trusting  there  will  be 
no  delay  in  concluding  the  matter, 
I  await  your  early  reply.  Very 
truly,  A.  F.  Wilcox.  He  also  testi- 
fied that  on  March  31,  1887,  he 
wrote  his  acceptance  upon  said 
contract  as  follows:  I  accept  the 
above  proposition  this  31st  day  of 
March,  1887,  Alfred  F.  Wilcox.  Hold- 
ing that  a  valid  contract  resulted 
which  could  be  specifically  per- 
formed. Kempner  v.  Cohn,  42  Ark. 
519.  In  this  case  the  parties  lived 
sixty  miles  apart,  the  places  be- 
tween which  there  was  mail  com- 
munication twice  a  day,  Kempner 
in  response  to  a  request  from  Cohn 
on  January  30th,  wrote  stating  his 
terms  of  sale.  Three  days  later 
Cohn  had  the  title  examined  and 
secured  the  money  to  pay  for  the 
land  February  7th.  Before  receiv- 
ing notice  of  Kempner's  withdrawal 
of  his  offer,  Cohn  wrote  accepting 
it  and  arranging  to  close  the  trans- 
action at  once.  Held,  there  was  a 
complete  and  binding  contract. 
Matteson  v.  Schofield,  27  Wis.  671. 
Was  held  that  where  there  is  a  dis- 
tinct offer  of  sale  specifying  the 
terms  and  describing  the  property 
and  the  offer  is  at  once  closed  by 
an  unqualified  acceptance,  the  con- 


22 


THE  LAW  OF  LAND  CONTRACTS 


[§15 


Where  the  acceptance  contains  any  qualification  of  the  offer, 
changing  or  modifying  the  terms  in  any  particulars,  then  such 
qualified  acceptance  will  not  result  in  a  binding  agreement.26 

Where  an  offer  is  made  same  may  be  withdrawn  at  any 
time  before  acceptance.  It  is  not  a  sufficient  communication  of 
acceptance  to  render  the  contract  mutual  and  binding  under 
the  statute  of  frauds  that  a  written  acceptance  executed  by  a 
proposed  purchaser  was  delivered  to  a  third  person,  a  business 
associate  of  such  signer  and  was  delivered  to  the  vendor  al- 
though the  fact  of  acceptance  in  writing  was  brought  home  to 
his  knowledge  in  writing.27 

Letters  may  be  considered  from  the  seller  to  the  buyer 
relating  to  an  agreement  to  sell  land  for  the  purpose  of  supply- 
ing any  deficiency  in  the  memorandum.28 


tract  is  complete  and  capable  of 
legal  enforcement.  Ryan  v.  United 
States,  136  U.  S.  68.  In  this  case 
certain  letters  and  telegrams  be- 
tween the  parties  together  with  the 
orders  of  the  War  Department 
were  construed  together  and  were 
held  to  constitute  an  agreement 
binding  upon  Ryan  to  sell  to  the 
United  States  certain  land  of  the 
City  of  Sault  Ste.  Marie.  Swallow 
v.  Strom,  83  Minn.  87.  It  was  held 
that  the  memorandum  may  consist 
wholly  of  letters  if  they  are  so  con- 
nected by  reference  express  or  im- 
plied that  they  show  on  their  face 
they  relate  to  the  same  subject 
matter.  See  also  Walsh  v.  Branard 
(Minn.,  1905),  103  N.  W.  1031;  Sey- 
mour v.  Warren,  179  N.  Y.  1  N.  N.  E. 
260;  Gates  v.  Paul,  117  Wis.  170,  94 
N.  W.  55;  Lyman  v.  Robinson,  96 
Mass.  14,  Allen  242;  Uran  v.  Coates, 
109  Mass.  587;  Williams  v.  Smith, 
161  Mass.  48;  Lee  v.  Butler,  167 
Mass.  426;  Hibbard  v.  Hatch  Stor- 
age Battery  Co.,  174  Mass.  297; 
Hickey  v.  Dale,  66  N.  H.  336;  Otis 
v.  Payne,  86  Tenn.  663;  Wills  v. 
Ross,   77   Ind.   1;    Thames   Sand   & 


Tile  Co.  v.  Deville,  100  Ind.  309; 
Gustin  v.  Davis,  129  Ind.  472;  Kings- 
bury v.  Burnside,  58  111.  310;  Knight 
v.  Colley,  34  Iowa  218;  Matteson  v. 
Scoffield,  26  Wis.  671;  Hickman  v. 
Cheney,  155  Mich.  217,  118  N.  W. 
993. 

26.  Acceptance  modifying  or 
changing  offer.  In  the  following 
cases  the  offeree  made  some  change 
in  the  offer  so  that  it  was  held 
that  his  acceptance  was  conditional 
and  therefore  not  binding.  Palmer 
v.  Marquette,  Etc.,  Mill  Co.,  32  Mich. 
274 ;  McElvoy  v.  Buck,  35  Mich.  434. 
Gannon  v.  Stansfield,  216  Mich.  441. 
Where  the  defendant,  owner  of  land, 
in  accepting  plaintiff's  offer  to  buy 
with  a  cash  payment  and  a  six  per 
cent  three-year  mortgage  for  the 
balance,  changed  the  terms  by  add- 
ing "seven  per  cent  thereafter." 
An  oral  acceptance  by  the  plaintiff 
of  defendant's  change  in  the  terms 
was  insufficient  to  satisfy  the  stat- 
ute of  frauds  and  specific  perform- 
ance would  be  denied. 

27.  Hollingshead  v.  Morris,  172 
Mich.  127. 

28.  Bailer  v.  Spiback,  213  Mich. 
921. 


§  16]  STATUTE  OF  FRAUDS  23 

Thus  where  an  extension  on  an  option  signed  by  one  of  three 
vendors,  vendees  in  common  supplied  the  data  lacking  in  the 
original  option  the  two  should  be  read  together,  and  may  be 
held  binding  on  the  vendor  so  signing,  but  not  on  the  others 
who  executed  the  original  option  only.29 

§  16.  Aiding  Memorandum  by  Parol  Evidence. — Where  the 
agreement  to  purchase  lands  is  sufficient  to  comply  with  the 
statute  of  frauds,  in  the  absence  of  fraud  or  mistake,  it  is 
error  to  admit  evidence  of  any  other  agreement  or  under- 
standing not  embodied  in  the  memorandum,  nor  can  such  writ- 
ing be  contradicted  by  parol  evidence.30  Thus,  where  upon 
the  final  closing  of  a  transaction,  the  vendor  sought  to  place  a 
restriction  in  the  contract,  claiming  it  was  orally  understood 
from  the  first  that  such  restriction  was  to  form  a  part  of  the 
contract,  and  the  memorandum  of  agreement  said  nothing 
about  such  restriction,  the  court  held  that  parol  evidence 
thereof  was  not  admissible,31  and  in  a  suit  for  the  specific 
performance  of  a  land  contract,  testimony  of  the  vendor  that 
it  was  orally  agreed  at  the  time  the  memorandum  was  signed 
that  it  should  be  considered  abrogated  unless  the  vendor's  title 
should  be  cleared  up  within  two  months,  was  inadmissible  to 
vary  or  add  to  the  writing  that  contained  no  such  conditional 
clause,  the  memorandum  being  conclusive  as  it  contained  the 
requisites  of  a  valid  contract.32  And  where  a  lease  required 
by  the  statute  of  frauds  to  be  in  writing,  provided  for  a 
certain  definite  rental,  parol  evidence  that  the  lessee  orally 
consented  to  pay  an  increased  rental  is  inadmissible  to  modify 
the  terms  of  such  written  lease.33 

Parol  evidence,  however,  is  admissible  to  show  that  a  pre- 
liminary agreement,  complete  in  itself,  was  delivered  condi- 
tionally. Thus,  where  a  written  order  was  given  for  the 
purchase  of  goods  upon  an  oral  understanding  that  a  previous 

29.  Cooper  v.  Pierson,  212  Mich.  31.  See  Ogoo3hevitz  v.  Sampson 
657.  —Supra. 

30.  Ogooshevitz  v.   Sampson,   211  32                 y     Mathias-Supra. 
Mich.  180;  Mull  v.  Smith,  132  Mich. 

618;    Smith   v.    Mathias,   174   Mich.  33.  Miles    v.    Shreve,    179    Mich 

262;     Ogooshevitz    v.    Arnold,     197      671- 
Mich.   203;    Welch  v.   Oakman,   199 
Mich.  188. 


24  THE  LAW  OF  LAND  CONTRACTS  [§  16 

written  order  was  to  be  cancelled,  it  was  permissible  to  show 
such  oral  agreement  by  parol  evidence.34 

Parol  evidence  is  likewise  admissible  where  the  description 
is  abstract  and  of  a  general  nature  for  the  purpose  of  identify- 
ing property.  Said  the  court  on  this  point  in  one  Michigan 
case :  "The  degree  of  certainty  with  which  the  premises  must 
be  denoted  is  denned  in  many  books  and  cases  are  extremely 
numerous  in  which  the  subject  has  been  illustrated.  They  are 
not  all  harmonious,  but  they  agree  in  this:  That  it  is  not 
essential  that  the  description  have  such  particulars  and  tokens 
of  identification  as  to  render  a  resort  to  extrinsic  aid  entirely 
needless  when  the  writing  comes  to  be  applied  to  the  subject 
matter.  The  terms  may  be  abstract  and  of  a  general  nature, 
but  they  must  be  sufficient  to  fit  and  comprehend  the  property 
which  is  the  subject  of  the  transaction;  so  that  with  the 
assistance  of  external  evidence,  the  description,  without  being 
contradicted  or  added  to,  can  be  connected  with  and  applied  to 
the  very  property  intended  and  to  the  exclusion  of  all  other 
property."  In  the  case  in  which  the  court  used  this  language 
a  written  proposition  to  sell  all  my  entire  rights,  title,  and 
interest  in  the  lands  *  *  *  or  standing  in  my  name,  for  a 
certain  definite  price,  was  held  to  be  sufficient,36  but  whether 
the  description  answers  the  requirements  of  the  statute  must 
be  determined  on  the  face  of  the  papers  before  the  admission 
of  testimony  to  connect  the  contract  with  the  property.86 

§  17.  Provisions  of  the  Preliminary  Contract. — Many  con- 
tracts executed  preliminary  to  the  regular  form  of  land  con- 
tract are  defective  in  that  they  do  not  state  sufficiently  the 
terms  of  the  land  contract  to  be  subsequently  entered  into. 
This  is  especially  true  of  those  preliminary  agreements  for 
the  purchase  of  real  estate,  drawn  by  real  estate  brokers  and 
others  not  skilled  in  the  drafting  of  contracts.  Frequently, 
the  down-payment  is  made  in  a  real  estate  office,  and  the  pre- 
liminary agreement  is  executed  in  the  form  of  a  brief  receipt 
containing  only  a  small  fraction  of  the  terms  and  conditions 

34.  Cleveland    Refining   Company  35.  Eggleston  v.  Wagner,  46  Mich, 

v.    Dunning,    115    Mich.    238;    Ada  618. 

Dairy    Association    v.    Mears,    123  36.  Eggleston  v.  Wagner — Supra. 
Mich.  470. 


s  I71  STATUTE  OF  FRAUDS  25 

which  the  parties  expect  later  to  be  embodied  in  the  land  con- 
tract. While  such  contracts  may  be  sufficient  to  support  specific 
performance  and  to  satisfy  the  statute  of  frauds,  they  may 
not  be  sufficiently  definite  with  reference  to  the  provisions  of 
the  land  contract  to  be  later  executed  as  to  enable  the  vendee 
to  enforce  specific  performance  of  such  a  contract  as  would 
fully  protect  him.37  Many  of  such  agreements  contain  im- 
portant omissions  necessary  for  the  protection  of  both  parties. 
Every  preliminary  agreement  for  the  execution  of  a  land 
contract,  in  addition  to  containing  the  essential  elements  re- 
quired by  the  statute  of  frauds,  namely :  The  parties,  descrip- 
tion of  the  property,  the  purchase  price,  the  terms  of  pay- 
ment and  time  of  performance,  should  as  the  occasion  may 
require  deal  with  the  following  additional  subjects: 

(a)  Date  possession  of  the  property  shall  be  given  to  the 
vendee,  and  the  amount  to  be  paid  upon  the  execution  of  the 
land  contract. 

(b)  Payment  of  taxes,  and  special  assessments,  payment  of 
insurance  premiums,  and  who  shall  have  the  right  to  designate 
the  company  in  which  such  insurance  shall  be  effected. 

(c)  Keeping  premises  in  repair  or  in  condition  as  when  sold. 

(d)  In  case  of  a  mortgage  on  premises,  assumption  of  mort- 
gage by  vendee,  when  contract  shall  be  paid  down  to  the 
mortgage,  if  that  is  desired. 

(e)  If  property  vendor  is  selling  is  encumbered,  such  en- 
cumbrance should  be  excepted  from  the  covenant  to  furnish 
an  abstract  showing  clear  title. 

(f)  Provision  respecting  the  adjustment  of  rental  collected 
in  advance. 

(g)  How  soon  abstract  shall  be  furnished,  and  what  firm 
shall  issue  such  abstract. 

(h)   Length  of  time  vendee  shall  have  to  examine  same. 

(i)  If  abstract  shall  disclose  defects  in  title,  which  are 
readily  correctable,  how  long  shall  the  vendee  have  to  correct 
such  defects. 

37.  Brin  v.  Michalsky,  188  Mich  not  nevertheless  vitiate  the  agree- 
401.     Holding  that  where  the  pre-  ment,  but  would  enable  the  vendor 
liminary  agreement  failed  to  specify  to  retain  possession  until  the  con- 
when  the  vendee  was  to  have  pos-  tract  has  been  paid  out  in  full, 
session,    such    an    omission    would 


26  THE  LAW  OF  LAND  CONTRACTS  [§  17 

(j)  Shall  the  contract  contain  a  clause  against  non-assign- 
ment. 

(k)  If  vendor  does  not  hold  legal  title,  but  is  himself  buying 
on  a  contract,  reference  should  be  made  to  this  fact,  and  the 
contract  should  be  so  drafted  that  the  vendor  contracts  to  show 
a  merchantable  title  at  date  of  closing,  not  in  himself,  but  in 
the  party  holding  legal  title  of  record.  In  such  cases,  for  the 
protection  of  the  vendee,  contract  should  contain  a  provision 
requiring  vendor  to  exhibit  his  original  contract,  from  time 
to  time,  so  that  the  vendee  may  be  satisfied  that  his  payments 
are  being  kept  up,  and  should  also  authorize  vendee,  in  the 
event  vendor  fails  to  make  the  payments  on  his  original  con- 
tract, to  make  such  payments  on  his  behalf,  and  take  credit 
for  such  payments  thus  made  on  his  contract.  The  vendee's 
contract  should  also  contain  a  provision  prohibiting  vendor 
from  assigning  his  original  contract  without  notice  to  his 
vendee,  and  requiring  the  assignee  of  said  vendor  to  enter 
into  an  undertaking,  agreeing  to  carry  out  the  contract  be- 
tween vendor  and  vendee.  While  the  sale  of  property  by  a 
vendor  held  only  on  land  contract  by  the  execution  of  a  second 
contract  is  attended  with  considerable  risk,  the  profession  can- 
not ignore  the  fact  that  there  are  individuals  who  are  willing 
to  take  that  risk,  and  when  they  do,  their  interest  should  be 
safeguarded  as  far  as  possible. 

Provision  respecting  the  forefeiture  of  the  land  contract 
upon  default  by  the  vendee,  and  what  notice,  if  any,  should  be 
required. 

In  the  absence  of  special  provisions  covering  these  matters 
in  the  preliminary  agreement,  it  is  very  doubtful  if  either  party 
can  compel  the  other  to  accept  a  land  contract  containing  any 
stipulations  or  provisions  not  covered  by  the  preliminary  agree- 
ment. The  additional  terms  above  referred  to  vary  quite  widely 
in  different  forms  of  land  contracts,  and  if  the  preliminary 
agreement  simply  calls  for  the  execution  of  a  land  contract 
without  providing  what  particular  form  is  to  be  used,  I  am 
unable  to  see  how  such  land  contract  could,  over  the  objection 
of  either  party,  be  made  to  contain  any  terms  not  embodied  in 
the  original  agreement. 


§18] 


STATUTE  OF  FRAUDS 


27 


§  18.  Essential  Elements  of  Preliminary  Contracts  for  Sale 
of  Real  Estate. — The  contract  or  memorandum  for  the  sale 
of  real  estate  to  meet  the  requirements  of  the  statute  must 
possess  the  following  essentials: 

(a)  The  contract  must  contain  a  description  of  the  land, 
sufficiently  definite  that  from  it  the  premises  may  be  identified. 
It  is  not  essential  that  the  description  describe  the  property 
by  lot  number  or  by  metes  and  bounds  as  it  has  been  held  that 
a  description  referring  to  the  property  by  street  number,  and 
in  other  cases  by  such  general  terms  as  "my  house,"  "The 
Schoolcraft  Store,"  and  other  similar  terms,  is  sufficient.38 

grantee  a  house  situated  on  a  cer- 
tain lot  correctly  describing  the  lot 
was  held  that  the  title  of  the  lot 
passed  with  the  house.  Garvey  v. 
Pankhurst,  127  Mich.  370.    Holding 


Description   Held   Sufficient   Under 
the  Statute  of  Frauds 


38.  Nowicki  v.  Kopelczak,  195 
Mich.  678.  A  description  of  real 
estate  in  a  contract  described  as 
No.  1086  Chene  Street,  corner  of 
Frederick  in  the  City  of  Detroit, 
Wayne  County,  Michigan,  was  held 
sufficient. 

Cooper  v.  Pierson,  212  Mich  659. 
The  description  of  the  option  in 
this  case  was  held  sufficient,  merely 
describing  the  lots  as  Lots  Nos.  831, 
833  and  835  North  Saginaw  Street, 
not  giving  the  city,  county,  or  state. 
An  extension  to  this  option,  how- 
ever, was  given  which  described 
the  property  as  Lot  No.  821  North 
Saginaw  Street,  Flint,  Michigan. 
The  extension  was  held  to  contain 
a  sufficient  description. 

Mull  v.  Smith,  132  Mich  618. 
Holding  as  description,  the  Burns 
Farm  sufficient. 

Austin  v.  Dolbee,  101  Mich. 
292  (294).— Holding  that  a  deed 
which  describes  the  land  as  all  my 
right  title  and  interest  in  and  to 
my  father's  estate  at  law  in  the  S. 
S.  Austin  Est.  was  sufficient  to  con- 
vey the  real  estate.  Bawden  v. 
Hunt,  123  Mich.  296.  Where  a  de- 
scription in  a  deed  conveyed  to  the 


that  where  one  person  wrote  to  an- 
other making  them  a  certain  prop 
osition  to  purchase  his  place,  using 
the  expression  my  place  in  the  let- 
ter and  the  purchaser  pursuant  to 
such  proposition  went  on  the  place, 
and  worked  it,  held  that  the  con- 
tract was  sufficient  compliance  with 
the  statute  of  frauds.  Francis  v. 
Barry,  69  Mich.  311,  37  N.  W.  353. 
Where  a  description  of  property  de- 
scribed as  the  "Schoolcraft  Store" 
was  held  sufficient.  Slaver  v. 
Breese,  36  Mich.  77;  Wiley  v.  Love- 
ly, 46  Mich.  83;  Crooks  v.  White- 
ford,  47  Mich.  286;  Huron  Land 
Company  v.  Robarge,  128  Mich.  686. 
Any  description  of  property 
whether  by  street  numbers  or  by 
a  well  known  name,  or  other  desig- 
nation by  which  identity  of  the 
premises  can  be  ascertained  will 
be  sufficient.  United  States  v. 
Sutherland,  60  U.  S.  (19  Howell), 
363,  15,  L.  Ed.  666.  A  tract  of  land 
known  by  name  of  El  Cajon  near 
the  mission  of  San  Diego  is  not 
void  for  uncertainty.  The  same 
rule  is  applied  in  case  of  Phelan  v. 


28 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


In  some  of  the  later  cases  a  tendency  is  noted  on  the  part 
of  the  courts  to  restrict  the  somewhat  liberal  rule  announced 
in  the  text  by  requiring  a  more  complete  description  of  the 
real  estate  sought  to  be  conveyed.89 


Poycreno,  74  Calif.  456;   Martin  v. 
Lloyd,     94     Calif.     195;     Veyer     v. 
Mound   City   Association,   97   Calif. 
659;    Hilberg    v.    Creer,    172    Mich. 
505-7.    Holding  that  a  description  of 
land  by  street  and  house  number  is 
sufficient.     It  is  only  essential  that 
the    description    shall   identify   the 
property,  and,  if  this  result  can  be 
attained    by    proving    the    identity 
and  location  of  the  land  in  the  de- 
scription, it  will  be  sufficient.     Ly- 
man  v.   Gedney,   114  111.   386.     Eg- 
gleston  v.  Wagner,  46  Mich.  610,  10 
N.  W.  37.     Where  a  description  of 
property  as,  "My  title  and  interest 
in    land,"    belonging    to    a    certain 
business   was   held   sufficient.     An- 
derson  v.    Baughman,    7    Mich.    69. 
Where    a   mortgage    described    the 
land  conveyed  as  lot  4  of  block  1 
of  the  La  Fontain  farm  lying  south 
of  the  River  Road  and  fronting  on 
Detroit  River  being  now  used  and 
occupied   with   the    steam    sawmill 
thereon  by  the  parties  of  the  first 
part  and  it  appeared  that  that  por- 
tion  of  the  La  Fontain  farm   had 
been  platted  into  four  lots  or  plats 
which    had    not    been    subdivided 
and  that  the  mill  was  situated  on 
one  No.  4  of  the  plat  and  the  others 
were  fenced  in,  used  and  occupied 
by   the   mill,   held   that   the   works 
of     Block     1     of    this     description 
should   be   rejected   and   the   mort- 
gage held  a  valid  lien  upon  lot  4 
according  to  the  evident  intent  of 
the  parties. 

39.  Clark  v.  Holman,  204  Mich. 
62.  In  this  case  the  following 
memorandum  was  signed  by  the  de- 


fendant at  an  auction  sale  of  real 
estate: 

"This  is  to  certify  that  I  have 
this  day  bought  through  The  Louis- 
ville Real  Estate  &  Development 
Co.  Lot  No.  1,  2,  3  in  Block  3,  ac- 
cording to  the  official  plan  of.... 

for  which  I  agree  to  pay 

$225.00    on    the    following    terms: 

cash  on  day  of  sale, 

balance  

"Date  Aug.  12,  1914. 

"Signature,  Geo.  Holman." 
"Witness : " 

Thereafter  plaintiff  tendered  to 
the  defendant  a  deed  to  the  lots 
in  question  and  demanded  payment 
of  one-third  of  the  purchase  price 
and  the  execution  of  notes  for  the 
balance.  Performance  being  re- 
fused by  the  defendant,  this  suit 
was  brought  to  recover  the  sum  of 
$675.00.  The  plea  was  the  general 
issue.  The  lower  court  directed  a 
verdict  in  favor  of  plaintiff.  The 
Supreme  Court  held  that  the  mem- 
orandum was  insufficient  to  sup- 
port the  plaintiff's  action. 

In  Miller  v.  Beardslee,  175  Mich. 
414,  a  bill  was  filed  to  cancel  a  deed 
on  the  ground  that  the  deed  as 
delivered  contained  no  sufficient 
description  of  the  premises;  the 
real  estate  is  described  therein  as 
follows : 

"All  of  certain  pieces  or  parcels 
of  land  situate  and  being  in  the 
Township  of  Oakland,  County  of 
Oakland  and  State  of  Michigan, 
and  described  as  follows,  to-wit: 
The  west  half  (y2)  of  the  northeast 
quarter    (^);    also    the    east   half 


§18] 


STATUTE  OF  FRAUDS 


29 


(b)  The  price,  time,  and  manner  of  payment  must  be  speci- 
fied.40 

(c)  If  the  preliminary  agreement  refers  to  a  subsequent 
agreement  to  be  later  executed  the  terms  of  such  subsequent 
agreement  must  be  clearly  stated.41 

A  memorandum  to  be  sufficient  under  the  statute  must  be 
complete  in  itself  and  must  leave  nothing  to  rest  in  parol.42 


(y2)  of  the  northwest  quarter  (14) 
except  eighteen  (18)  acres  off 
southwest  corner;  also  the  north- 
west corner  of  the  west  half  (]/2) 
of  the  southeast  quarter  (14)  lying 
north  of  property  of  Michigan  Cen- 
tral R.  R.  Co.  "all  of  Section  twen- 
ty, Town  four,  North  Range  eleven 
East,  Michigan." 

The  Supreme  Court  reversed  the 
decision  of  the  lower  court  grant- 
ing the  relief  prayed  for  in  the  bill 
of  complaint  and  on  page  416  used 
the  following  language: 

"It  is  apparent  that  when  the 
deed  was  executed  and  delivered 
by  the  grantor  it  contained  no  com- 
plete description  of  land.  The 
words,  "Lying  north  of  property  of 
Michigan  Central  R.  R.  Co."  are 
the  only  words  employed  which  can 
by  any  possibility  aid  the  descrip- 
tion. And  these  words,  in  the  light 
of  certain  testimony  which  was 
admitted,  are  found  to  afford  no 
real  aid  because  the  railroad  com- 
pany had  at  least  a  right  of  way 
in  seven  sections  in  Oakland  town- 
ship. Other  testimony,  admitted 
without  objection,  and  not  disputed, 
tended  to  prove  that  Alice  Smith 
owned  land,  otherwise  correspond- 
ing with  the  description  in  the  deed, 
in  section  20  in  said  township,  and 
owned  no  other  land  in  the  town- 
ship; defendants  say  that  this  tes- 
timony, having  come  in  without  ob- 
jection,  may  be   properly   used   to 


determine  what  land  was  intended 
to  be  conveyed  and  to  sustain  the 
deed.     We   think   this   is  not   so." 

In  the  case  of  Groppers  v.  Mar- 
shall, 206  Michigan,  page  560,  in 
an  action  brought  to  recover  dam- 
ages for  a  breach  of  written  con- 
tract the  court  held  that  the  fol- 
lowing description  of  the  premises 
was  too  ambiguous,  uncertain  and 
indefinite  to  form  the  basis  of  ac- 
tion for  damages. 

"All  that  certain  piece  or  parcel 
of  land  situate  in  the  Township  of 
Byron,  in  the  County  of  Kent  and 
State  of  Michigan,  described  as  fol- 
lows, viz:  "The  east  half  of  the 
southeast  quarter  and  the  south- 
east quarter  of  the  northeast  quar- 
ter, less  one  acre  (E.  y2  S.  E.  yA 
and  S.  E.  %  of  N.  E.  yA  less  1  A.) 
of  township  five  north  of  range 
twelve  west,  containing  one  hun- 
dred nineteen  acres  of  land,  more 
or  less,  according  to  the  govern- 
ment survey  thereof;'.' 

40.  Where  the  contract  simply 
specified  "Interest  59r.  Easy 
Terms,"  held  too  indefinite  to  satis- 
fy statute  of  frauds.  Hildberg  v. 
Green,  172  Mich.  505;  Gault  v. 
Stormont,  51  Mich.  636;  Adler  v. 
Katus,  190  Mich.  86.  See  collec- 
tion of  cases  note  15  of  this  section. 

41.  See  Webster  v.  Brown,  67 
Mich.  328. 

42.  See  cases  collected  in  note 
53  supra. 


30 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


If  the  memorandum  fails  to  name  the  consideration  or  pur- 
chase price,  or  to  state  the  time  of  performance,43  or  if  the 
time  when  payment  is  to  be  made  is  not  stated,44  or  if  the 
memorandum  is  not  complete  in  itself  without  resorting  to 
parol  evidence,45  or  if  it  fails  to  name  the  parties,  or  naming 
them,  only  one  signs  the  agreement,  where  two  purport  to 
effect  the  sale,46  or  if  the  contract  purports  to  be  made  by  an 
agent  or  indicates  on  its  face  that  it  is  so  made,  and  the 
agent  instead  of  the  principal  signs  same,47  in  all  the  fore- 
going instances  the  contract  is  within  the  statute  of  frauds 
and  unenforceable. 

In  the  absence  of  fraud  or  mistake  where  a  preliminary  land 
contract  is  complete  in  itself,  it  is  error  for  the  trial  court  to 
admit  oral  evidence  contradicting  its  provisions  to  the  effect 
that  it  did  not  contain  the  agreements  of  the  parties.48 

If  the  written  contract  itself  is  void  by  reason  of  falling 
within  the  statute,  and  the  party  seeking  relief  can  establish 
the  agreement  by  parol  evidence  free  from  doubt  and  am- 
biguity, which  agreement  followed  by  part  performance,  suf- 
ficient to  take  the  case  out  of  the  statute  the  contract  will  be 
upheld.49 

In  construing  the  provisions  of  a  land  contract,  a  construc- 
tion is  to  be  preferred,  which  will  render  it  valid  rather  than 
void.50 

Where  the  preliminary  agreement  has  been  lost,  parol  evi- 
dence is  admissible  as  to  its  contents.61 

For  a  more  detailed  examination  of  the  Michigan  cases,  dis- 
closing what  contracts  the  courts  have  held  to  be  a  sufficient 


43.  Rosenbaum  v.  T.  Tyszka,  192 
Mich.  457.  Where  the  considera- 
tion is  not  named,  nor  the  time 
of  performance. 

Tattan  v.  Bryant,  198  Mich.  515. 
Where  the  consideration  was  not 
stated. 

44.  Nichols  v.  Buchanan,  177 
Mich.  601. 

45.  Ebert  v.  Cullen,  165  Mich.  75. 

46.  Adler  v.  Katus,  190  Mich.  86. 

47.  Shipman  v.  Campbell,  79 
Mich.  82. 


48.  Ogooshevits  v.  Sampson,  211 
Mich.  180;  Smith  v.  Mathis,  174 
Mich.  262;  Ogooshevits  v.  Arnold, 
197  Mich.  204;  Walsh  v.  Oakman, 
199  Mich.  688. 

49.  Lyle  v.  Munsen,  213  Mich. 
250. 

50.  Stamp  v.  Steel,  209  Mich. 
205-210;  Anderson  v.  Baughman,  7 
Mich.  69-74,  Am.  Dec.  699;  Morse  v. 
Hewett,  28  Mich.  481. 

51.  Bignell  v.  Franks,  212  Mich. 
319. 


§  18J 


STATUTE  OF  FRAUDS 


31 


compliance  with  the  statute  and  what  have  been  held  insuffi- 
cient, the  reader  is  referred  to  the  note  accompanying  this 
section  where  the  Michigan  cases  have  been  collected  and  the 
particular  contract  passed  upon  by  the  courts  is  either  ab- 
stracted or  set  out.  We  have  grouped  the  cases  in  which  the 
courts  have  held  the  agreements  sufficient,62  and  in  another 

PRELIMINARY    AGREEMENTS    FOR    THE    CONVEYANCE    OF 

LAND  HELD  SUFFICIENT 
52.  Under  this  section  we  have  abstracted  the  following  cases  all  hold- 
ing the  memorandum  sufficient: 


Gannon  v.  Slansfield,  216  Mich. 
441;  Bailer  v.  Spivack,  213  Mich. 
436;  Lyle  v.  Munson,  213  Mich. 
250;  Ogooshevitz  v.  Sampson,  211 
Mich.  184;  Stamp  v.  Steele,  209 
Mich.  205;  Ogooshevitz  v.  Arnold, 
197  Mich.  204;  Nowicki  v.  Kopel- 
czak,  195  Mich.  678;  Brin  v. 
Michalski,  188  Mich.  400;  Bushman 
v.  Faltis,  184  Mich.  172;  Hilberg 
v.  Creer,  172  Mich.  505;  Goldberg 
v.  Drake,  145  Mich.  50;  Huron 
Land  Co.  v.  Robarge,  128  Mich. 
686;  Mull  v.  Smith,  132  Mich.  618; 
Garvey  v.  Pankhurst,  127  Mich. 
370;  Bawden  v.  Hunt,  123  Mich. 
296;  Austin  v.  Dolbee,  101  Mich. 
292;  Munro  v.  Edwards,  86  Mich. 
91;  Lambert  v.  Weber,  83  Mich. 
395;  Francis  v.  Barry,  69  Mich. 
311;  Crooks  v.  Whitford,  47  Mich. 
286;  Eggleston  v.  Wagner,  46  Mich. 
610;  Wiley  v.  Lovely,  46  Mich.  83; 
Slaver  v.  Breese,  36  Mich.  77;  An- 
derson v.  Baughman,  7  Mich.  69; 
Bailer  v.  Spivack,  213  Mich.  436. 

In  this  case,  a  memorandum  de- 
scribed the  property  as  No.  151 
Wilkins  Street,  four  family  frame 
flat  in  the  City  of  Detroit,  County 
of  Wayne  and  State  of  Michigan. 
This  contract  is  peculiar  in  that  the 
buyers  agreed  to  purchase  but  the 


seller  did  not  agree  to  sell.  This 
memorandum  was  followed  by  a 
notice  on  the  part  of  the  seller  that 
the  abstract  was  ready,  and  the 
court  held  this  latter  construed 
with  the  memorandum  was  suffi- 
cient to  comply  with  the  statute  of 
frauds. 

Lyle  v.  Munson,  213  Mich.  250. 
This  was  the  case  where  the  par- 
ties made  a  lease  in  writing,  but 
was  void,  on  Sunday.  This  lease 
contained  an  option  of  purchase, 
but  was  followed  by  part  perform- 
ance, being  certain  improvements 
made  on  the  premises. 

The  court  held  the  agreement 
sufficient  since  followed  by  part 
performance. 

Ogooshevitz  v.  Sampson,  211 
Mich.  187.  In  this  case  the  parties 
entered  into  the  following  agree- 
ment: 

"Received  of  I.  Ogooshevitz  $100 
as  first  payment  on  lot  known  as 
westerly  18  feet  of  lot  seven  (7) 
and  easterly  34  feet  of  lot  eight 
(8)  being  52  feet  on  the  south  side 
of  Palmer  Avenue  west  of  Beau- 
bien  Street,  for  the  sum  of  $5,720, 
terms  as  follows:  $620  more  on 
delivery  of  land  contract  or  deed, 
and  the  remaining  $5,000  on  or  be- 
fore one  (1)  year  from  the  date  of 


32 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


contract,  purchaser  to  receive  an 
abstract  brought  down  to  date  be- 
fore the  contract  is  made  to  show 
free  and  clear  title.  Six  percent 
interest.    George  D.  Sampson." 

The  court  held  this  agreement 
sufficient  to  comply  with  the  stat 
ute  of  frauds. 

Mull  v.  Smith,  132  Mich.  618. 
"The  parties  met  defendant,  who, 
on  being  asked  to  fix  his  lowest 
cash  price,  submitted  the  follow- 
ing written  proposition: 

"Freemont,  Mich.,  December  22, 
1900.  Forty  acres  for  $650.  Mort- 
gage $250.  Leaves  balance  $400. 
Will  take  cash  $375  for  my  inter- 
est in  place.     Frank  H.  Smith." 

This  was  Exhibit  1.    Plaintiff  ac- 
cepted   this,   and    paid    $100   down 
Defendant   gave    him    a    memoran- 
dum   of    the    contract,    reading   as 
follows: 

"Freemont,  Mich.,  Dec.  22nd,  1900. 
I  agree  to  give  to  Mr.  E.  M.  Mull 
a  warranty  deed  of  the  Burns  farm 
upon  payment  of  $275,  subject  to 
mortgage  of  $250.  Frank  H.  Smith." 

This  was  Exhibit  A.  He  also 
gave  him  the  following  receipt: 
"100.00.  Freemonty  Mich.,  12-22- 
1900.  Received  of  E.  M.  Mull,  one 
hundred  dollars  to  apply  on  pay- 
ment of  Burns  farm.    F.  H.  Smith." 

The  foregoing  memoranda  held 
sufficient  to  satisfy  the  statute  of 
frauds. 

Stamp  v.  Steele,  209  Mich.  205 
(211).  In  the  case  of  a  deed  where 
the  property  was  described  as  "91 
and  95  East  Webster  Avenue"  the 
court  held  that  a  description  of 
street  numbers  is  sufficient. 

Bushman  v.  Faltis,  184  Mich. 
172.     The  complainant's  bill  in  this 


case  was  for  the  specific  perform- 
ance of  an  agreement  made  by  the 
defendant  with  the  plaintiff  where- 
by the  defendant  was  to  lease  cer- 
tain land  in  the  city  of  Detroit  for 
ninety-nine  years  The  agreement 
acknowledged  receipt  by  the  de- 
fendant of  $250  from  the  plaintiff 
as  part  payment  on  the  first  six 
months'  rental;  it  also  contained 
the  amount  of  yearly  rental  which 
was  to  be  charged  but  no  definite 
time  was  mentioned  for  the  pay- 
ment of  the  rental.  The  argeement 
also  contained  the  condition  that 
the  lessees  could  purchase  the 
property  from  the  lessor  for  a 
stated  consideration  at  any  time 
within  ten  years  after  the  execu- 
tion of  the  agreement.  The  agree- 
ment being  signed  by  the  defendant 
Faltis. 

The  defendant  argued  that  the 
agreement  was  too  uncertain  and 
indefinite  to  permit  of  specific  per- 
formance; that  no  time  for  the  pay- 
ment of  the  rent  is  fixed,  and  in  the 
event  of  sale,  the  time  for  the  pay- 
ment of  the  purchase  price  is  not 
stated. 

The  court  held  that  this  agree- 
ment was  not  indefinite  or  uncertain 
and  that  specific  performance  there- 
of will  be  compelled  of  the  defend- 
ant. The  contract  provides  that  the 
rent  shall  be  a  certain  amount  "per 
year,"  this,  under  the  authorities, 
is  synonymous  with  saying  that  the 
rent  will  be  due  at  the  end  of  the 
year.  Therefore  the  time  for  the 
payment  of  the  rent  is  stated  with 
sufficient  certainty.  The  agreement 
here  provided  an  option  whereby 
the  purchaser  must  exercise  his 
right  of  purchase  within  a  fixed 
time.  The  time  of  payment  being 
fixed,  this  case  is  clearly  distin- 
guishable from  Gault  v.  Stormont, 


§18] 


STATUTE  OF  FRAUDS 


33 


51  Mich.  636,  and  Ebert  v.  Cullen, 
165  Mich.  75,  cited  above;  for  in 
both  of  those  cases  no  time  was 
fixed  for  the  payment  of  the  pur- 
chase  price. 

Ogooshevitz  v.  Arnold,  197  Mich. 
204.  In  this  case  the  complainant 
filed  a  bill  against  the  defendant 
for  the  specific  performance  of 
an  agreement  between  the  plain- 
tiff and  the  defendant.  A  clear 
description  of  the  property,  the 
amount  of  the  purchase  price,  and 
the  times  of  payment  thereof  were 
all  clearly  set  forth.  The  defend- 
ant was  to  furnish  an  abstract 
brought  down  to  date  showing  clear 
title.  This  the  defendant  did  not 
do,  the  abstract  he  furnished  show- 
ing some  defect  in  the  title.  Plain- 
tiff refused  to  accept  title  as  it 
stood  in  the  abstract  and  defend- 
ant refused  to  clear  up  the  defect 
although  it  was  within  his  power 
to  do  so.  Upon  plaintiff's  refusal 
to  accept  the  defective  title  the  de- 
fendant declared  the  deal  off  and 
this  bill  is  brought  by  the  plain- 
tiff as  a  result. 

The  court  held  that  this  was  such 
an  agreement  as  will  be  enforced. 
That  there  was  nothing  ambiguous 
about  this  agreement  and  that  it 
complies  with  all  the  requirements 
of  the  statute  of  frauds.  The  par- 
ties, the  property,  the  price,  the 
terms  of  payment,  the  time  of  per- 
formance are  all  definitely  fixed. 
That  while  it  is  true  that  this  is 
not  the  land  contract  itself,  being 
an  agreement  to  execute  a  land 
contract;  still  a  court  of  equity 
may  specifically  decree  the  per 
formance  of  an  agreement  to  exe- 
cute a  land  contract.  This  agree- 
ment being  complete  in  itself  and 
satisfying  all  the  requirements   of 


the   statute  of  frauds  will   be   spe- 
cifically   enforced. 

Brin  v.  Michalski,  188  Mich. 
400.  Complainant  filed  a  bill  to 
compel  specific  performance  of  a 
land  contract  which  he  holds  as 
assignee.  According  to  the  terms 
of  the  agreement  the  defendant 
agreed  to  convey  certain  property, 
which  is  properly  described,  to  the 
original  contractee  for  $5,400.  The 
agreement  further  provided  that 
the  purchase  price  was  to  be  paid 
$50  down  on  the  execution  of  the 
agreement  and  the  balance  in  in- 
stallments, the  amount  and  time 
of  paying  said  installments  being 
definitely  set  forth.  The  plaintiff 
alleges  that  she  tendered  perform- 
ance in  that  she  offered  to  pay  the 
amount  due  on  the  first  installment 
of  the  purchase  price  but  that  de- 
fendant refused  to  accept  same  be- 
cause he  had  already  disposed  of 
the  property  to  another  at  a  higher 
price. 

The  court  held  that  this  contract 
is  sufficient  in  all  particulars  to 
satisfy  the  requirements  of  the  sta- 
tute of  frauds.  The  parties,  prop- 
erty, consideration,  terms,  and  time 
of  performance  are  all  clearly 
stated.  Such  being  the  case  the 
court  decreed  specific  performance. 
The  court  points  out  that  this 
agreement  is  clearly  distinguisha- 
ble from  Gault  v.  Stormont,  51  Mich. 
636,  in  that  here  the  time  for  the 
payment  of  the  purchase  price  is 
plainly  stated  while  in  the  previ- 
ous case  no  time  for  the  payment 
was  mentioned. 

Goldberg  v.  Drake,  145  Mich. 
50.  Plaintiff  brought  suit  to  re- 
cover damages  for  the  breach  of 
the  following  agreement  between 
himself  and  the  defendant: 


THE  LAW  OF  LAND  CONTRACTS 


34 

••Memorandum  of  agreement 
made  this  29th  day  of  April,  A.  D. 
1904,  between  Samuel  T.  Goldberg, 
party  of  the  first  part,  and  Soledad 
Drake,  party  of  the  second  part,  in 
the   manner   following:      The   said 
party  of  the  first  part,  in  considera- 
tion of  the   sum  of   $25.00   to  him 
paid  upon  the  signing  of  this  agree- 
ment,  hereby   agrees   to   sell   unto 
the  said  party  of  the  second  part 
all  that  certain  piece  or  parcel  of 
land   situate   in   the   City  of  Kala- 
mazoo,  County  of  Kalamazoo,  and 
State  of  Michigan,  and  more   par- 
ticularly  known   and   described   as 
follows,  to  wit:  House  and  premises 
on  West  Lovell  street  on  the  south 
side    thereof,    the    premises    being 
the  third  lot  west  of  the  intersec- 
tion of  Park  and  Lovell  streets. 

"The  said  party  of  the  first  part 
hereby  agrees  to  sell  the  said  prem- 
ises to  the  said  party  of  the  sec- 
ond part  for  the  sum  of  $4000  (four 
thousand  dollars),  and  that  the  said 
party  of  the  second  part  may  have 
this   option  for   seven   days.     The 
sum  of  $25.00  paid  upon  the  signing 
of   this   agreement  to   apply   upon 
the   sum   of  $4,000   to   be   paid   in 
full  for  said  premises. 

"Sam  T.  Goldberg. 
"I  hereby  agree  to  the  above 
the  sum  of  three  thousand  nine  nun- 
terms  and  to  pay  the  balance,  or 
dred  and  seventy-five  dollars,  with- 
in seven  days. 

"Soledad  Drake. 


[§18 


erty  when  tendered  by  the  plaintiff 
and  the  latter  bring  this  action. 


The  testimony  showed  that  the 
part  of  this  agreement  above  plain- 
tiff's signature  was  signed  by  the 
plaintiff  on  the  day  of  its  date  and 
that  thereafter  the  defendant  added 
the  clause  of  acceptance  and  signed 
her  name.  Later  the  defendant  re- 
fused to  accept  a  deed  for  the  prop- 


The   court  held  that  this  was   a 
valid  contract  binding  on  both  par- 
ties.   There  is  nothing  indefinite  or 
uncertain  about  the  contract.     The 
parties,  property,  consideration  and 
time  of  payment  of  said  considera- 
tion are  explicitly  stated.     Origin 
ally   this   instrument   amounted   to 
no  more  than  an  option,  but  when 
the     addendum     was     added     and 
signed    by    the    defendant,    that 
amounted  to  an  acceptance  and  was 
as  a  matter  of  fact  an  unconditional 
promise  to  pay  the  purchase  price 
within  seven  days.    From  that  time 
on  the  purchaes  was  no  longer  op- 
tional with  the  defendant. 

Garvey   v.   Parkhurst,   127   Mich. 
368.     This  is  an  action  brought  by 
Emma  Garvey  against  the  defend- 
ant Parkhurst  to  recover  the  pos- 
session of  land  occupied  by  the  de- 
fendant.   Both  parties  derived  title 
from  one  Charles  Garvey,  a  son  of 
the   plaintiff.     Complainant   is   the 
mother  of  Charles  and  Harry  Gar- 
vey.   On  April  the  6th,  1896,  Harry 
Garvey    wrote    to    his    brother 
Charles  stating  that  he  desired  to 
purchase  the  premises  in  question 
and  asked  for  his  terms.     To  this 
inquiry  Charles  replied  as  follows: 
"You  asked  me  what  I  would  do 
with  you  about  my   place.     If  you 
want  it,  I  will  let  you  have  it  for 
$150,  and  you  pay  the  back  taxes. 
I  will  give  you  five  years  to  pay  it 
in,  but  I  can't  give  you  a  contract 
until  I  come  home.    I  don't  expect 
to  come  home   for  two  years,  but 
you  can  go  on  and  build  a  house, 
and  I  wil  give  you  a  contract  then. 
You  will  have  to  pay  the  taxes  this 
summer." 


§18] 


STATUTE  OF  FRAUDS 


35 


There  was  no  written  acceptance 
of  this  offer  by  Harry  but  he  went 
into  possession  of  the  premises  re- 
lying upon  the  contract  created  by 
the  letter.  He  remained  in  posses- 
sion about  one  year  when  he  as- 
signed all  "his  right,  title,  and  in- 
terest to  a  certain  place,"  the  place 
spoken  of  in  the  letter  from  his 
brother  to  the  defendant.  The  lat- 
ter went  into  possession  and  made 
improvements.  Complainant  was 
displeased  because  the  property  had 
passed  out  of  the  family  and  ob- 
tained a  quit  claim  deed  to  the 
premises  from  Charles  and  then 
brought  this  action. 

The  complainant  contended  that 
this  alleged  contract  between  the 
two  brothers  was  void  under  the 
statute  of  frauds,  in  that  the  offer 
above  quoted  did  not  contain  a 
sufficient  description  of  the  prop- 
erty. 

The  court  held  that  this  contract 
was  sufficient  to  satisfy  the  require- 
ments of  the  statute  of  frauds. 
That  a  description  in  order  to  be 
sufficient  under  the  statute  does 
not  have  to  be  a  governmental  de- 
scription or  a  description  by  metes 
and  bounds.  That  it  is  enough  if 
the  land  is  described  by  name  so 
that  it  can  be  identified  by  extrinsic 
evidence  not  contradictory  to  the 
contract. 

Munro  v.  Edwards,  86  Mich.  91. 
Complainant  brought  a  bill  to  com- 
pel specific  performance  of  a  memo- 
randum of  agreement  entered  into 
between  the  complainant  and  the 
defendant.  By  the  terms  of  this 
agreement  the  defendant  agreed  to 
sell  to  the  plaintiff  certain  de- 
scribed property  for  $5,150;  onehun 
dred  dollars  of  the  purchase  price 
to  be  paid  down,  and  three  hundred 


as  soon  as  the  abstract  was  com- 
pleted or  within  fourteen  days  from 
the  date  of  signing  the  agreement. 
The  plaintiff  was  to  assume  a 
mortgage  for  $1,500  then  on  the 
place,  the  amount  of  the  mortgage 
to  be  counted  in  on  the  purchase 
price,  the  balance  of  the  $5,150  was 
to  be  paid  within  six  years.  Plain- 
tiff paid  the  $100  which  was  to  be 
paid  down  but  the  defendant  failed 
to  furnish  a  satisfactory  abstract 
of  title  and  plaintiff  did  not  pay 
the  $300  within  the  fourteen-day 
period,  as  the  supplying  of  the  ab- 
stract was  a  condition  precedent 
thereto.  After  the  fourteen-day 
period  had  elapsed  defendant  repu- 
diated the  agreement.  Defendant 
contends  that  this  agreement  is  in- 
complete and  lacks  mutuality;  that 
plaintiff  does  not  agree  to  buy  the 
land  or  to  pay  the  $300. 

The  court  held  that  this  was  such 
an  agreement  as  may  be  enforced; 
that  this  agreement  is  signed  by 
both  parties,  and  while  the  plain- 
tiff does  not  in  express  terms  agree 
to  buy  or  pay,  by  implication  he 
agrees  to  do  both.  The  property 
is  sufficiently  described  and  the 
time  for  the  payment  of  the  bal- 
ance of  the  purchase  price  is  fixed 
with  certainty. 

Chief  Justice  Champlin  delivered 
a  dissenting  opinion  in  which  he 
held  that  this  agreement  was  not 
one  which  should  be  specifically  en- 
forced; that  while  the  property  it- 
self is  described  with  sufficient  cer- 
tainty, the  time  and  terms  of  pay- 
ment are  not  stated  nor  the  time 
when  the  deed  is  to  be  executed; 
and  that  an  agreement  in  order  to 
be  sufficient  under  the  statute  of 
frauds  must  be  complete  in  itself 
and  leave  nothing  to  parol. 


36 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


Lambert  v.  Weber,  83  Mich.  395. 
This  case  arose  out  of  the  fil- 
ing of  a  bill  for  specific  perform- 
ance on  the  part  of  the  plaintiff  to 
compel  defendant  to  convey  cer- 
tain property  to  plaintiff  under  the 
terms  of  a  written  agreement  en- 
tered into  between  the  parties.  Ac- 
cording to  the  terms  of  the  agree- 
ment the  defendants  agreed  to  con- 
vey certain  described  property  in 
the  City  of  Detroit  to  the  plaintiff 
for  twenty-five  hundred  dollars, 
twenty-five  dollars  of  which  was  to 
be  paid  down  at  the  time  of  exe- 
cuting the  agreement.  The  balance 
of  the  purchase  price  was  to  be  paid 
at  the  delivery  of  the  deed  and  a 
Burton  abstract  of  title,  with  tax 
statements  of  said  land.  The 
twenty-five  dollars  was  paid  down 
at  the  time  of  executing  the  agree- 
ment and  the  memorandum  was 
signed  by  both  parties.  The  defend- 
ants had  an  abstract  prepared  but 
there  appeared  to  be  some  flaw  in 
the  title.  Negotiations  continued 
between  the  parties  but  nothing 
came  from  them  because  defend- 
ants did  not  produce  an  abstract 
satisfactory  to  the  plaintiffs  or  one 
such  as  they  were  entitled  to  de- 
mand. Finally  the  defendants  re- 
pudiated the  agreement  and  dis- 
posed of  the  land  to  a  third  party 
and  plaintiff  brings  this  bill  not 
only  to  enforce  specific  perform- 
ance of  the  original  agreement  but 
to  set  aside  the  subsequent  convey- 
ance. 

The  court  held  that  the  plaintiff 
was  entitled  to  the  relief  prayed 
for  in  this  case.  The  contract 
did  not  contain  any  definite  pro- 
vision as  to  when  the  deed  should 
be  executed  and  the  money  paid 
but  it  is  plainly  evident  that  the 
complainants  were  to  have  a  clear 


title.  According  to  the  terms  of 
the  agreement  the  money  was  to 
be  paid,  "at  the  delivery  of  the 
deed,  and  a  Burton  abstract  of 
title,  with  tax  statements."  The 
parties  understood  by  this  that  the 
defendants  must  show  complainants 
a  clear  title  before  they  asked 
them  to  pay  the  purchase  price. 
Since  defendants  did  not  furnish 
a  clear  abstract  of  title  complain- 
ants were  not  in  default  in  refus- 
ing payment  until  such  abstract 
was  produced.  This  contract  is 
certain  and  definite  enough  in  all 
particulars  to  permit  of  specific 
performance  and  to  satisfy  the  re- 
quirements of  the  statute  of  frauds. 

Francis  v.  Barry,  69  Mich.  311. 
This  was  an  action  for  damages 
brought  by  the  plaintiff  to  recover 
for  the  breach  of  a  contract  made 
by  the  defendant  with  the  plaintiff, 
by  which  defendant  had  agreed  to 
convey  to  plaintiff  certain  property. 
The  contract  is  based  upon  numer- 
ous letters  exchanged  between  the 
parties  wherein  the  terms  of  sale 
were  discussed  and  finally  certain 
terms  were  agreed  upon.  Briefly 
stated  the  correspondence  shows 
an  offer  by  the  defendant  to  sell 
and  convey  to  the  plaintiff  certain 
property  known  as  the  "School- 
craft-store  Property,"  for  $2,500, 
$2,000  in  cash  on  delivery  of  deed 
and  the  balance  to  be  paid  by  two 
notes  amounting  to  $500  to  be 
signed  by  the  plaintiff  and  payable 
from  the  rents  of  the  store.  An  ac- 
ceptance of  this  offer  of  defend- 
ant's on  the  part  of  plaintiff  was 
clearly  proved.  Subsequent  to  this 
agreement  between  the  present  par- 
ties, litigant,  the  defendant  dis- 
posed of  the  land  to  a  third  party 
for  $3,000. 


§18] 


STATUTE  OF  FRAUDS 


37 


The  defendant  contends  that  this 
agreement  which  plaintiff  sets  up 
is  not  sufficient  to  satisfy  the  re- 
quirements of  the  statute  of  frauds 
because  there  is  not  a  sufficient 
contract  in  writing,  and  also  that 
a  sufficient  description  of  the  prop- 
erty to  be  conveyed  is  not  disclosed 
by  the  written  correspondence. 

The  court  held  that  a  complete 
and  binding  contract  may  be  cre- 
ated by  letters  or  other  writings 
relating  to  one  connected  transac- 
tion, if  without  the  aid  of  parol 
testimony,  the  parties,  the  subject 
matter,  and  the  terms  of  the  con- 
tract may  be  collected.  That  in 
the  instant  case  these  requirements 
are  complied  with,  the  terms  of  the 
contract  are  clear  and  unmistaka- 
ble, likewise  the  parties  and  sub- 
ject matter  of  the  contract.  The 
contention  of  the  defendant  that 
there  was  not  a  sufficient  descrip- 
tion of  the  property  is  unsupporta- 
ble;  the  property  was  referred  to 
by  both  parties  in  the  early  part 
of  their  correspondence  as  "the 
Schoolcraft  Store"  and  later  as 
"the  property."  This  later  designa- 
tion assumed  a  definite  meaning  in 
the  light  of  what  had  gone  before 
and  could  refer  to  nothing  but  the 
Schoolcraft-store  property  and  such 
a  description  is  wholly  sufficient  to 
identify  the  property. 

Pearson  v.  Gardner,  202  Mich. 
360.  The  plaintiff  in  the  above  en- 
titled case  filed  a  bill  for  specific 
performance  to  enforce  an  oral  con- 
tract for  the  purchase  of  a  house 
and  lot.  At  the  time  of  this  pur- 
chase the  defendant  gave  to  the 
plaintiff  the  following  receipt: 

"Mamburg,  Michigan,  June  6 
(there  is  a  six  and  a  seven  over 
it),   1917.     Received   of  Edd  Gard- 


ner and  Delia  Gardner  One  Hun- 
dred Dollars  ($100)  on  purchase 
price  of  house  and  lot  in  Hamburg 
village.  Balance  of  Eighteen  Hun- 
dred Dollars  ($1,800)  to  be  paid 
and  deed  given  in  five  days.  A  H. 
Pearson." 

This  agreement  was  followed  by 
a  surrender  of  possession  to  the 
defendants.  Plaintiff  prepared  a 
deed  for  the  premises  and  tend- 
ered the  deed  and  abstract  of  title. 
Performance  on  the  part  of  the 
defendant  was  again  refused.  In 
the  meantime  the  defendant  had 
continued  in  possession  of  the  prop- 
erty, had  changed  the  partitions 
therein,  trimmed  some  of  the  shade 
trees  and  harvested  the  vegetables 
from  the  garden.  The  court  held 
that  specific  performance  should  be 
awarded,  citing  36  Cyc,  p.  686; 
Peckham  v.  Balch,  48  Mich.,  197; 
Cole  v.  Cole  Realty  Co.,  169  Mich. 
347;  2  Pomeroy's  Equitable  Reme- 
dies, Sec.   747. 

Huldberg  v.  Creer,  172  Mich. 
505.  Where  the  option,  properly 
signed,  described  the  property  by 
street  number,  consideration  one 
dollar,  purchase  price  to  be  $5,500, 
interest  5%,  easy  terms,  held  suf- 
ficient as  to  whether  it  was  a  sale 
or  a  lease  and  as  to  the  descrip- 
tion of  the  premises. 

Huron  Land  Co.  v.  Robarge, 
128  Mich.  686.  A  deed  purporting 
to  convey  all  the  right,  title,  and 
interest  in  and  to  the  estate,  prop- 
erty and  effects  of  a  deceased  per- 
son, be  it  real,  personal  or  mixed, 
by  the  heirs  of  decedent,  is  suffi- 
cient to  pass  their  interest  in  de- 
cedent's real  estate. 

Crooks  v.  Whiteord,  47  Mich. 
286.  Where  ejectment  was  brought 
for    land    in    town    two,    south    of 


38 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


group  have  placed  these  decisions  wherein  the  courts  have 
held  the  agreement  insufficient.63 


range  ten,  west  in  Comstock  town- 
ship, the  plaintiff,  in  support  of  his 
title,  introduced  a  deed  purporting 
to  convey  the  same  description  of 
land  in  the  township  of  that  name, 
but  describing  it  as  in  range  nine. 
Held,  that  the  discrepancy  was  not 
sufficient  ground  to  exclude  the 
deed,  but  that  extrinsic  evidence 
was  admissible  to  identify  the  land 
conveyed  with  the  premises  in  suit. 
Wiley  v.  Lovely,  46  Mich.  83. 
Where  a  deed  described  the  land 
conveyed  as  lot  77  of  the  original 
plat  of  the  village  as  recorded  and 
the  original  plat  only  contained  29 
lots,  with  another  plat  on  record 
designating  the  lot  to  be  number 
78,  and  still  another  plat,  not  re- 
corded, contained  the  lot  as  num- 
ber 77,  and  that  it  had  been  dealt 


with  for  more  than  25  years  as  lot 
77,  held,  that  the  error  in  descrip- 
tion did  not  invalidate  the  convey- 
ance. It  is  often  necessary  to  re- 
sort to  parol  evidence  for  the  pur- 
pose of  applying  the  deed  to  the 
subject  matter. 

Slater  v.  Breese,  36  Mich.  77. 
Omitting  to  name  the  state,  county, 
and  township,  in  the  description  of 
premises  mortgaged,  will  not  in- 
validate the  instrument,  where 
other  adequate  elements  of  iden- 
tification exist;  and  it  is  not  es- 
sential that  the  property  should  be 
described  so  as  to  identify  it  with- 
out the  aid  of  extrinsic  proofs,  but 
it  is  always  competent  to  connect 
the  written  description  with  the 
material  subject  matter  by  proof 
of  the   surrounding   circumstances. 


PRELIMINARY    AGREEMENTS    FOR    THE    CONVEYANCE    OF 
LAND  HELD  INSUFFICIENT 
53.  Under  this   section   we  have   abstracted   the   following   cases,   all 
holding  the  memorandum  insufficient: 


Pangborn  v.  Sifford,  216  Mich. 
164;  Cooper  v.  Pierson,  212  Mich. 
658;  Zimmerman  v.  Miller,  206 
Mich.  600;  Groppers  v.  Marshall, 
206  Mich.  560;  Clark  v.  Holman, 
204  Mich.  62;  Tatten  v.  Bryant,  198 
Mich.  515;  Holland  v.  Holland,  195 
Mich.  513;  Rosenbaum  v.  Tyszka, 
192  Mich.  457;  Adler  v.  Katus,  190 
Mich.  86;  Berston  v.  Gilbert,  190 
Mich.  638;  Nichols  v.  Burchman, 
177  Mich.  601;  Miller  v.  Bearslee, 
175  Mich.  175;  Hildberg  v.  Creer, 
172  Mich.  505;  Ebert  v.  Cullen,  165 
Mich.  75;  Taylor  v.  Scott  &  Co., 
149  Mich.  525;  Kroll  v.  Diamond 
Match  Co.,  113  Mich.  196;  Shipman 
v.  Campbell,  79  Mich.  82;   Webster 


v.  Brown,  67  Mich.  328;  Wadell  v. 
Williams,  62  Mich.  50;  Gault  v. 
Stormont,  51  Mich.  636;  Maynard 
v.  Brown,  41  Mich,  298. 

Cooper  v.  Pierson,  212  Mich.  658. 
In  this  case  a  thirty-day  option  read 
as  follows:  "May  26,  1919.  In  con- 
sideration of  one  ($1.00)  dollar,  we, 
the  undersigned,  agree  to  give  op- 
tion to  Morris  Cooper  on  lots  831, 
833  and  835,  North  Saginaw  Street, 
for  the  sum  of  two  hundred  sixty 
and  no/100  dollars  per  front  foot. 
It  is  agreed  that  the  first  payment 
be  made  five  thousand  dollars.  Bal- 
ance to  be  secured  by  deed  of  trust 
for  five  years  with  six  per  cent,  in- 
terest. This  option  will  expire  on 
June   26,    1919.     Fred   D.    Pierson, 


§18] 


STATUTE  OF  FRAUDS 


39 


Robert  L.  Pierson,  Fannie  G.  Pier- 
son." 

This  option  was  followed  by  a  re- 
ceipt and  extension  reading  as  fol- 
lows: 

"$100.00  June  26,  1919.  Received 
from  Morris  Cooper  one  hundred 
and   no/100   dollars,   part   payment 

on  purchase  price  of  Lots  No , 

known  in  option  furnished  to  Mor- 
ris Cooper  in  option  dated  May  26, 
1919,  the  revised  No.  known  as 
Number  821  North  Saginaw  Street, 
Flint,  Michigan,  deed  to  be  drawn 
on  or  before  10  days.  Fred  D.  Pier- 
son." 

The  court  held  the  original  op- 
tion insufficient  to  satisfy  the  sta- 
tute of  frauds  in  that  it  did  not  de- 
scribe the  property  sufficiently,  it 
not  naming  the  state,  county,  city 
or  village  in  which  the  property 
was  situated,  but  held  that  with 
the  extension  which  was  signed  by 
one  vendor,  the  person  executing 
the  extension  would  be  bound,  cit- 
ing Gait  v.  Stormont,  51  Mich.  636; 
Rosenbaum  v.  Tyszka,  192  Mich. 
457;  Groppers  v.  Marshall,  26  Mich. 
560. 

Zimmerman  v.  Miller,  206  Mich. 
600.  The  parties  in  this  case  en- 
tered into  a  form  of  contract.  The 
defendant  refusing  to  perform,  the 
plaintiff  brought  an  action  to  re- 
cover damages  for  fraudulent  rep- 
sentations;  the  court  held  that  in- 
asmuch as  this  contract  indicates 
on  its  face  that  the  defendant,  F. 
P.  Miller,  was  signing  the  same  on 
behalf  of  someone  else,  it  would  not 
become  a  binding  agreement  until 
approved  in  writing  by  the  vendor. 

In  Tattan  v.  Bryant,  198  Mich. 
515,  the  litigation  arose  out  of  the 
following  agreement  in  writing 
which  plaintiff  contends  is  a  land 


contract,  and  seeks  to  enforce  spe- 
cific performance  of,  while  the  de- 
fendant contends  it  is  merely  a 
forfeited  option: 

"Memorandum  of  agreement, 
made  and  entered  into  this  13th 
day  of  April,  A.  D.  1914,  by  and 
between  John  A.  Bryant,  of  the 
City  of  Detroit,  Wayne  County, 
Michigan,  hereinafter  known  as  the 
seller,  and  Catherine  Tattan,  of  the 
same  place,  hereinafter  known  as 
the  purchaser:  In  consideration  of 
the  sum  of  one  dollar  this  day  paid 
to  the  seller  by  the  purchaser,  said 
seller  does  hereby  agree  to  sell  to 
said  purchaser  the  following  de- 
scribed property,  to  wit:  The  Wood- 
ward Avenue  frontage,  being  the 
westerly  one  hundred  feet  (100) 
of  lots  B  and  two,  and  the  north 
one-half  of  the  vacated  portion  of 
Pallister  Avenue  of  Chandler  ave- 
nue subdivision  of  part  lot  five  (5) 
of  subdivision  of  quarter  section 
57,  ten  thousand  acre  tract,  except- 
ing and  reserving  an  easement  or 
right  of  way  on  a  strip  of  land  ten 
feet  in  width  from  the  easterly  end 
of  said  property,  as  provided  in  a 
certain  deed  to  John  Kaiser,  Sr. ; 
also  including  easement  and  right 
of  way  over  southerly  ten  (10)  feet 
of  land  heretofore  deeded  to  said 
Kaiser,  Sr.,  on  the  following  terms, 
to  wit:  For  the  sum  of  twenty- 
four  thousand  two  hundred  dollars 
($24,200)  payable  five  hundred  dol- 
lars ($500)  on  the  signing  of  this 
agreement  and  the  balance  of 
twenty-three  thousand  seven  hun- 
dred dollars  ($23,700)  as  follows: 
Twelve  thousand  two  hundred  dol- 
lars ($12,200)  or  more  payable 
thirty  days  (30)  from  the  date  here- 
of and  the  balance  of  eleven  thou- 
sand five  hundred  dollars  ($11,500) 


40 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


as  follows:  Three  thousand  dollars 
($3000)  one  year  from  date,  three 
thousand  dollars  ($3000)  two  years 
from  date,  and  the  balance  of  five 
thousand  five  hundred  dollars 
($5,500)  three  years  from  the  date 
hereof  with  the  privilege  of  paying 
any  and  all  sums  at  any  time  after 
this  date,  with  interest  at  6  per 
cent,  per  annum  on  any  sums  due 
and  unpaid. 

It  is  understood  and  agreed  be- 
tween    the     parties     that     E.     M. 
O'Roark,    real    estate    agent,    who 
held  a  prior  option  on  this  prop- 
erty, dated  March  10th,  1914,  which 
said  option  has  expired,   is   to  re- 
ceive   from    the    first   payment    of 
twelve  thousand  two  hundred  dol- 
lars ($12,200)  the  sum  of  seventeen 
hundred     dollars      ($1700),     which 
amount  is  to  be  paid  in  full  of  all 
claim  on  his  part  for  commission 
or  otherwise,  against  either  of  the 
parties  hereto,  or  against  said  prop- 
erty, and  said  E.   M.  O'Roark  has 
this  day  signed  this  agreement  as 
evidence    thereof.      It    is    provided 
further  that  if  said  purchaser  shall 
fail  to  pay  the  sum  of  twelve  thou- 
sand two  hundred  dollars  ($12,200) 
thirty  days  from  the  date  hereof  as 
agreed,  then  said  payment  of  five 
hundred  dollars  this  day  made  shall 
be  retained  by  the  seller  as  liqui- 
dated damages  and  this  agreement 
shall  at  once  be  cancelled  and  the 
purchaser  shall  forfeit  any  interest 
she  may  have  or  may  claim  in  said 
premises.      It    is    understood    and 
agreed  that  the  purchaser  has  ex- 
amined  Burton    abstract,   that   the 
title  is  satisfactory  and  that  upon 
the  completion  of  the  terms  of  this 
option    and    payment    of    the    pur- 
chase price  for  said  property,  she 
shall    receive    a    deed    warranting 


said  title  against  the  acts  of  the 
seller  and  a  Burton  abstract  as 
now  brought  down  and  certified. 

"In  witness  whereof,  the  parties 
have  hereunto  set  their  hands  and 
seals  the  day  and  year  first  above 
written.  John  A.  Bryant,  Cather- 
ine Tattan,  E.  M.  O'Roark." 

The  $500  payable  "on  the  sign- 
ing of  this  agreement"  was  then 
paid  by  the  plaintiff  as  provided. 
But  the  plaintiff  never  paid  the 
$12,200  which  was  due,  according 
to  the  terms  of  the  agreement, 
thirty  days  after  the  signing 
thereof. 

The  plaintiff  contends  that  this 
instrument  is  a  present  agreement 
between  the  parties  for  the  sale 
and  purchase  of  land,  and  not  a 
mere  unilateral  option  contract  giv- 
ing the  plaintiff  the  right  to  elect 
to  purchase,  on  or  before  a  certain 
date.  Council  for  plaintiff  further 
urges  that  this  is  a  land  contract 
because  the  agreement  contains 
certain  terms,  such  as  "seller"  and 
"purchaser"  and  that  "said  seller 
does  hereby  agree  to  sell  to  the 
said  purchaser"  and  etc.,  which  are 
common  to  land  contracts. 

The  court  held:  There  was  no 
provision  in  this  agreement  where- 
by the  plaintiff  agreed  to  purchase; 
it  was  provided  that  she  was  to  re- 
ceive a  deed  on  compliance  with 
"the  terms  of  this  option."  After 
paying  the  $500  upon  the  execution 
of  the  agreement  there  was  nothing 
further  imposed  upon  the  plain- 
tiff. She  was  free  to  perform  the 
agreement  and  enforce  it  or  to  for- 
feit payment  and  abandon  it.  She 
was  under  no  obligation  to  pur- 
chase. Furthermore  the  time  limit 
of  thirty  days  was  made  the  es- 
sence  of   the    agreement   in   clear 


§18] 


STATUTE  OF  FRAUDS 


41 


and  unequivocal  terms.  By  failing 
to  make  payment  of  the  $12,200 
within  the  thirty  days  specified, 
plaintiff  forfeited  her  rights  under 
the  agreement.  Specific  perform- 
ance of  this  agreement  will  not 
be  enforced  as  this  is  merely  an 
optional  agreement. 

In  Holland  v.  Holland,  195  Mich. 
513,  the  plaintiff  brought  a  bill 
to  enforce  the  specific  perform- 
ance of  the  following  written  agree- 
ment between  himself  and  the  de- 
fendant: 

"I  hereby  agree  to  deed  Gottlieb 
Holland  half  interest  in  the  Hotel 
Smalley  property  at  any  time  that 
he  may  demand  a  deed.  (Signed) 
Edward  Holland.  Witness:  S.  H. 
Cochran." 

The  plaintiff  contended  that  this 
agreement  was  an  agreement  to 
convey  land  or  a  land  contract  and 
that  he  was  entitled  to  the  specific 
performance  of  same. 

Held:  This  memorandum  is  not 
suffcient  to  satisfy  the  statute  of 
frauds.  A  memorandum  to  be  suf- 
ficient under  the  statute  must  be 
complete  in  itself  and  leave  noth- 
ing to  rest  in  parol.  It  must  con- 
tain a  description  of  the  property 
to  be  conveyed,  and  the  considera- 
tion to  be  paid  therefor,  and  also 
express  definitely  the  time  or  times 
of  payment.  Applying  these  re- 
quirements as  a  criterion  the  above 
agreement  is  found  to  be  fatally 
defective.  Even  assuming  that  the 
description  of  the  property  con- 
tained in  the  writing  is  sufficient, 
still  there  is  no  consideration 
named  and  no  time  mentioned  with- 
in which  said  consideration  shall 
be  paid.  Therefore  since  no  time 
is  fixed  for  the  performance  and  no 
consideration  mentioned  this  is  not 


a  contract  which  a  court  of  equity 
will  enforce. 

In  Rosenbaum  v.  Tyszka,  192 
Mich.  457.  Plaintiff  brought  a  bill 
to  enforce  the  specific  performance 
of  the  following  written  agreement 
which  he  contends  is  a  contract 
for  the  conveyance  of  land: 

"Detroit,  Mich.,  May  29,  1915. 
Received  of  Sam  and  Bella  Rosen- 
baum twenty-five  and  no/100  dol- 
lars, as  deposit  on  house  located  at 
1415  Chene  Street,  purchase  price 
$3,450.  One  thousand  will  be  paid 
before  June  15,  1915.  Balance  $300 
and  interest.  (Signed)  Kornelia 
Tyszka." 

Defendants  refused  to  convey  and 
set  up  a  defense  to  this  bill  the 
allegation  that  the  alleged  contract 
upon  which  the  bill  was  predicated 
was  not  sufficient  under  the  stat- 
ute of  frauds  to  bind  the  defend- 
ants to  make  the  sale. 

Held:  This  alleged  contract  is 
not  sufficient  to  satisfy  the  stat- 
ute of  frauds.  In  order  for  a 
preliminary  agreement  to  convey 
land  to  be  sufficient  under  the  sta- 
tute, the  parties,  property,  consid- 
eration, terms,  and  time  of  per- 
formance must  be  clearly  stated. 
The  above  writing  does  not  contain 
the  terms  and  the  time  of  perform- 
ance is  not  stated.  Consequently, 
specific  performance  of  such  an 
agreement  will  not  be  enforced. 

Adler  v.  Katus,  190  Mich.  86. 
In  this  case  the  plaintiff  brought 
suit  to  recover  the  money  he  had 
paid  down  under  the  terms  of  the 
following  written  contract  of  sale 
of  real  property,  the  agreement  be- 
ing signed  by  one  of  the  joint  own- 
ers of  the  property  and  also  by 
him  for  the  other  joint  owner,  al- 


42 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


though    the    latter    had    never    au- 
thorized such  signature: 

"Received  from  Hyman  Adler  the 
sum  of  five  hundred  ($500)  dollars 
to  apply  on  the  purchase  money  to 
the  amount  of  twelve  thousand  five 
hundred  dollars  for  the  following 
described  property,  to  wit:  Lot 
numbered  eighty  nine  (89),  plat  of 
part  of  P.  C.  181,  north  of  Jeffer- 
son Avenue,  Antoine  Rivard  farm, 
subdivided  into  lots  1841,  said  lot 
being  situate  on  the  northwest  cor- 
ner of  Macomb  and  Rivard  streets, 
having  a  frontage  of  fifty  feet  on 
Macomb  street  and  one  hundred 
five  (105)  feet  along  the  west  line 
of  Rivard  street  to  a  public  alley; 
the  remainder  of  the  purchase 
money  to  amount  to  twelve  thou- 
sand dollars  to  be  paid  as  follows: 
Two  thousand  ($2,000)  dollars  upon 
delivery  of  property  by  land  con- 
tract and  a  certified  abstract  of 
title  for  examination  on  or  before 
September  1,  1914,  provided  pa- 
pers are  completed  by  that  date, 
and  the  remaining  ten  thousand  dol- 
lars in  quarterly  payments  of  two 
hundred  fifty  ($250)  dollars  or 
more,  payments  to  include  principal 
and  interest  at  the  rate  of  six  per 
cent,  per  annum. 

"In  addition  thereto,  the  pur- 
chaser agrees  to  discharge,  when 
due,  all  taxes  and  assessments  and 
to  keep  property  fully  covered  by 
insurance  in  amounts  approved  by 
the  seller,  said  policies  to  be  held 
by  the  seller  in  escrow  until  such 
time  as  the  property  has  been  fully 
paid  for. 

"It  is  understood  that  the  pur- 
chaser is  to  draw  all  rents  from 
and  after  the  date  of  the  land  con- 
tract when  the  two  thousand  dollar 
payment    has    been    made.      Peter 


Katus,  Charles  J.  Katus,  by  Peter 
Katus. 

"I  do  hereby  agree  to  purchase 
the  property  above  described  and 
on  the  terms  and  conditions  herein 
set  forth.  H.  Adler.  Aug.  15,  1915. 
Detroit,  Michigan." 

The  plaintiff  contends  that  the 
contract  is  void  under  the  statute 
of  frauds  and  that  he  is  entitled  to 
recover  the  money  paid  to  the  de- 
fendants as  paid  without  conisder- 
ation;  while  the  defendants  argue 
that  it  is  binding  upon  Peter  Katus 
at  all  events  and  that  plaintiff  can- 
not recover. 

Held :  If  a  promise  to  convey  the 
land  is  to  be  implied  from  this 
memorandum  it  is  a  joint  pormise 
of  Peter  and  Charles  J.  Katus  and 
not  of  Peter  Katus  alone.  The 
money  is  received  by  both  and  if 
any  conveyance  is  implied  it  is  a 
joint  conveyance.  This  cannot  be 
construed  as  a  contract  made  by 
Peter  alone.  Since  it  cannot  be 
construed  as  made  by  Peter  alone 
and  since  he  had  no  authority  to 
sign  the  name  of  Charles,  the  agree- 
ment is  void  as  to  Charles,  and 
since  it  is  void  as  to  Charles  and 
not  a  severable  agreement,  the 
whole  agreement  is  entirely  void. 
Inasmuch  as  the  contract  was  not 
sufficient  to  satisfy  the  statute  of 
frauds  since  it  was  not  signed  by 
the  parties  thereto,  the  plaintiff 
could  not  have  compelled  specific 
performnace  of  the  defendants, 
therefore  since  the  contract  is  void 
he  is  entitled  to  recover  the  money 
he  paid  down. 

Berston  v.  Gilbert,  180  Mich. 
638.  Plaintiff  sold  to  the  defend- 
ant upon  a  land  contract  a  certain 
lot  in  the  City  of  Flint  for  $550. 
payable  $3  cash  and  $1  per  week. 


§18] 


STATUTE  OF  FRAUDS 


43 


Plaintiff  is  bringing  a  bill  to  can- 
cel tbe  contract  because  defendant 
is  in  arrears  in  his  payments.  Al- 
though the  contract  bore  a  secular 
date,  it  was  as  a  matter  of  fact 
executed  upon  Sunday  and  all  the 
payments  that  defendant  made  with 
one  exception  were  made  on  Sun- 
days. Defendant  had  gone  into  pos- 
session and  erected  buildings  upon 
the  premises.  Plaintiff  argues  that 
by  going  into  possession  and  also 
by  making  one  payment  on  a  week 
day  the  defendant  has  as  a  mat- 
ter of  fact  created  a  new  contract. 

Held:  Since  the  contract  was 
executed  on  Sunday  it  was  void 
under  the  statute  and  cannot  be 
ratified  upon  a  secular  day.  No 
new  contract  was  created  by  any 
of  the  acts  of  the  defendant.  What- 
ever was  done  by  the  defendant 
was  done  in  reliance  upon  the  con- 
tract upon  which  the  plaintiff  bases 
this  action  and  not  upon  any  new 
contract.  Since  this  was  the  case 
and  this  contract  was  void,  the 
complainant's  bill  for  cancellation 
which  is  based  upon  the  contract 
must  fail. 

Nichols  v.  Burcham,  177  Mich. 
601.  The  land  involved  in  this  case 
was  owned  by  John  and  Albert 
Burcham,  brothers,  who  were  co- 
partners dealing  in  lands.  On  May 
8th,  1909,  the  defendants  Burcham 
entered  into  an  option  contract 
with  the  complainant  whereby 
plaintiff  had  an  option  to  purchase 
the  land.  Plaintiff  paid  the  $10 
as  required  by  the  option  contract 
and  later,  within  the  time  of  the  op- 
tion, bought  the  land  on  a  land 
contract  for  $1000,  $250  being  paid 
down  at  the  time  of  executing  the 
agreement.  Burchams  are  the 
nominal  defendants,  the  real  party 
defendant   being    one    Mott   Hicks. 


On  May  4th,  1909,  or  four  days  be- 
fore the  Burchams  gave  complain- 
ant the  option,  they  entered  into 
the  following  written  agreement 
with  defendant  Hicks  upon  which 
the  latter  bases  his  claim  to  the 
land  and  by  means  of  which  he 
seeks  to  defeat  complainant's  bill 
praying  that  the  Burchams  be 
made  to  specifically  perform  their 
contract  to  convey  to  the  plaintiff- 

"Long  Lake,  Iosco  County,  Michi- 
gan, May  4,  1909.  Description  of 
land  purchased  by  John  Burcham 
and  Albert  Burcham  by  Mott 
Hicks:  Beginning  thirty  two  (32) 
rods  north  of  the  southeast  corner 
of  section  five  (5),  thence  west  to 
the  Little  Long  Lake,  then  west 
along  said  lake  and  west  side  of 
town  four  (4),  then  north  to  the 
D.  &  M.  Ry.,  then  to  lot  three  (3), 
then  east  to  two  hundred  and  fifty 
feet  (250),  then  north  to  Big  Long 
Lake,  then  east  down  Big  Long 
Lake  to  section  line  of  section 
four  (4),  then  south  to  the  point  of 
beginning,  all  lands  being  situated 
in  lot  thirty  eight  (38)  of  section 
five  (5),  town  twenty  three  (23) 
north  of  range  five  (5),  east,  con- 
taining eighty  three  acres  of  land 
more  or  less.  Received  ten  dollars 
($10)  to  apply  on  purchase  price  of 
said  land,  purchase  price  being  nine 
hundred  dollars  ($900).  (Signed) 
John  Burcham." 

Held:  The  above  receipt  is  not 
sufficient  to  satisfy  the  statute  of 
frauds  and  is  not  a  contract,  within 
the  meaning  of  the  statute,  to  con 
vey  lands.  It  is  deficient  in  that 
no  time  is  specified  as  to  when  the 
payment  of  the  purchase  price  shall 
be  made.  The  defendant  Hicks 
cannot  therefore  set  up  this  agree- 
ment as  a  prior  sale  of  the  premises 
to  him. 


44 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


Ebert  v.  Culleu,  165  Mich.  75. 
In  this  case  the  plaintiff  filed  a  bill 
to  enforce  specific  performance  of 
an  agreement  to  sell  certain  lands. 
The  agreement  upon  which  the  bill 
Is  predicated  is  as  follows: 

"Detroit,  Mich.,  March  14,  1910. 
Received  of  E.  L.  Ebert,  twenty  five 
dollars  on  sale  to  him  or  principal 
of  the  20  feet  N.  E.  cor.  Trowbridge 
and  John  R.,  price  five  hundred  dol- 
lars.    (Signed)   Jas.  H.  Cullen." 

Defendant  argued  that  this  al- 
leged contract  to  sell,  is  not  suffi- 
cient, under  the  statutes  of  the 
state  to  bind  defendant  to  make  the 
sale. 

The  court  held  that  this  receipt 
was  insufficient  to  satisfy  the  re- 
quirements of  the  statute  of  frauds. 
For  although  the  purchase  price 
is  specified,  the  time  or  times  of 
payment  is  not  expressed.  A  memo- 
randum to  be  sufficient  under  the 
statute  must  be  complete  in  itself 
and  leave  nothing  to  parol. 

Taylor  v.  R.  D.  Scott  &  Co., 
149  Mich.  525.  In  this  case  the 
plaintiff  sued  in  assumpsit  to  re- 
cover damages  for  a  breach  of  an 
alleged  contract  entered  into  be- 
tween the  plaintiff  and  the  trustees 
of  the  R.  D.  Scott  Estate.  R.  D. 
Scott,  who  was  the  principal  stock- 
holder in  the  R.  D.  Scott  &  Co. 
Corporation,  died  testate,  naming 
in  his  will,  W.  R.  Scott,  F.  L.  Ward, 
F.  G.  Jacobs,  E.  S.  Todd  as  trus- 
tees of  his  stock  in  the  said  corpo- 
ration. After  the  said  R.  D.  Scott's 
death  the  board  of  directors  of  the 
said  corporation  was  reorganized, 
and  some  but  not  all  of  the  direc- 
tors were  also  trustees  of  the  R. 
D.  Scott  Estate,  holding  the  stock 
In  trust.  On  the  19th  of  March, 
1906,  the  plaintiff  made  the  follow- 
ing   proposition     in    writing    upon 


which  he  bases  his  present  action: 
"Pontiac,  Mich.,  1906.  R.  D.  Scott 
&  Company,  E.  S.  Todd,  W.  R. 
Scott,  F.  E.  Ward,  F.  G.  Jacobs, 
Trustees  of  the  R.  D.  Scott  Estate. 

"Gentlemen:  I  hereby  submit  to 
you  for  your  consideration  and  ac- 
ceptance the  following  proposition 
to  purchase  the  plant,  merchandise, 
and  business  of  the  R.  D.  Scott 
Company. 

"I  will  purchase  the  real  estate 
known  as  the  R.  D.  Scott  &  Com- 
pany's factory,  situated  on  the  D.,  G. 
H.  &  M.  R.  R.  tracks  in  the  west  por- 
tion of  the  City  of  Pontiac;  also  the 
building  used  in  connection  as  a 
warehouse,  situated  on  the  ground 
along  the  D.,  G.  H.  &  M.  R.  R.  to- 
gether with  all  machinery,  office 
fixtures,  tools  and  equipment,  and 
will  pay  you  therefor  the  sum  of 
$10,000    (ten  thousand  dollars). 

"The  real  estate  referred  to 
above  is  described  as  all  that  part 
of  Out  Lot  21  on  the  northeast 
quarter  of  section  32,  lying  west  of 
Baum  and  Terbusch's  lands,  and 
east  by  the  D.,  G.  H.  &  M.  R.  R. 
right  of  way.  Also  Lot  No.  7,  sub- 
division of  Out  Lots  22  and  23,  and 
part  of  13,  and  the  southeast  quar- 
ter of  section  29. 

"I  will  also  purchase  all  the  ma- 
terial which  you  may  have  on  hand 
on  the  first  day  of  April,  1906,  con- 
tained in  the  above  mentioned  fac- 
tory and  used  in  the  manufacture 
of  your  present  line  of  work,  and 
pay  you  for  the  same  eighty  per 
cent,  of  the  market  price  of  said 
material. 

"Any  other  material  not  used  in 
the  manufacture  of  the  present  line 
as  shown  in  your  present  catalogue, 
you  are  to  remove  from  the  factory 
by  May  1,  1906. 


§18] 


STATUTE  OF  FRAUDS 


45 


"Any  complete  jobs  which  are 
completed  and  ready  for  shipment 
April  1,  1906,  are  not  to  be  con- 
sidered as  part  of  this  material, 
but  are  to  be  shipped  and  billed 
by  you  as  your  property.  I  will, 
however,  allow  you  to  store  them 
in  the  factory  without  expense  un- 
til you  are  able  to  ship  the  same. 

"I  am  enclosing  you  my  individ- 
ual check  for  $5000  (Ave  thousand 
dollars)  to  apply  on  the  purchase 
price  when  the  property  is  properly 
deeded  and  transferred  to  me.  It 
is  my  understanding  that  it  will  be 
necessary  to  have  the  sale,  if  made, 
approved  by  the  probate  court. 
(Signed)   C.  V.  Taylor." 

Below  and  to  the  left  of  the 
agreement  are  the  words  "ac- 
cepted" and  under  it  the  names  of 
the  four  trustees.  The  trustees 
filed  a  bill  in  chancery  and  ob- 
tained permission  from  the  court 
to  consent  to  the  sale  of  the  prop- 
erty embraced  in  the  written  propo- 
sition signed  by  the  plaintiff,  by 
the  corporation.  Shortly  after  and 
while  negotiations  were  still  pro- 
ceeding, and  before  the  board  of 
directors  had  taken  any  action,  the 
property  was  destroyed  by  fire. 
The  defendant  trustees  then  tend- 
ered back  the  plaintiff's  check  but 
he  claims  that  there  was  a  com- 
pleted contract  and  brings  this  ac- 
tion for  damages. 

The  court  held  that  there  was 
no  valid  contract  in  writing,  bind- 
ing upon  the  defendant  corporation 
and  answering  the  reuqirements  of 
the  statute  of  frauds.  The  propo 
sition  itself  was  addressed  to  tbe 
defendant  corporation  and  also  to 
the  four  trustees.  The  only  ac- 
ceptance in  writing  was  a  pur- 
ported acceptance  by  the  trustees. 


There  is  nothing  in  the  acceptance 
of  these  trustees  to  indicate  that 
by  their  acceptance  they  were  as- 
suming to  act  as  directors  of  the 
defendant  company.  This  is  a  case 
where  no  corporate  action  was 
formally  taken  and  where  there  is 
no  written  contract  purporting  to 
be  made  on  behalf  of  the  corpora- 
tion; nor  is  there  assent  in  writing 
of  all  the  interested  parties.  Either 
corporate  action,  formally  taken,  or 
the  assent  of  all  the  parties  in  in- 
terest is  essential  to  make  a  valid 
contract  for  the  sale  and  disposi- 
tion of  real  estate. 

Kroll  v.  Diamond  Match  Co., 
113  Mich.  196.  In  this  case  the 
manager  of  the  defendant  company 
negotiated  with  the  plaintiff  for 
the  purchase  by  the  defendant  of 
the  plaintiff's  interest  in  certain 
lands. 

The  following  writing  was  exe- 
cuted by  the  manager  of  the  de- 
fendant company  and  delivered  to 
the  plaintiff: 

"Feby.  28,  '94.  Draft  for  $2,000 
We  will  send  Wm.  Kroll,  of  Ken- 
ton, Mich.,  on  receipt  from  him  of 
a  Q.  C.  deed  based  on  State  T.  D. 
of  N.  E.  1/4  23-47-40.  D.  M.  Co., 
by  J.  H.  Comstock,  Mgr." 

Plaintiff  tendered  a  deed  which 
defendant  refused  to  accept,  where- 
upon plaintiff  brought  this  action 
for  the  price  of  the  land.  The  de- 
fense relied  on  the  statute  of 
frauds.  The  defendant  claimed  that 
the  execution  of  the  deed  in  writ- 
ing amounted  to  an  acceptance  of 
the  above  quoted  offer  of  the  de- 
fendant. 

The  court  held  that  there  was 
no  proper  acceptance  of  this  offer 
in  writing  such  as  to  satisfy  the 
requirements     of     the     statute     of 


46 


THE  LAW  OF  LAND  CONTRACTS 


[§18 


frauds.  The  memorandum  here  was 
a  mere  preliminary  negotiation  and 
since  not  accepted  at  that  time  by 
the  plaintiff  in  writing,  a  subse- 
quent acceptance  on  the  part  of  the 
plaintiff  could  not  bind  the  defend- 
ant; for  the  original  agreement  be- 
ing void,  the  defendants  in  order 
to  be  bound  would  have  to  execute 
a  new  agreement. 

Shipman  v.  Campbell,  89  Mich. 
82.  Plaintiff  brought  suit  against 
the  defendant  Campbell  for  moneys 
he  had  paid  the  defendants  on 
the  purchase  price  of  certain  real 
estate.  Waterman's  Real  Estate 
Exchange  carried  on  the  negotia- 
tions with  the  plaintiff  for  the  de- 
fendants. The  plaintiff  agreed  to 
purchase  the  property  for  $20,500 
and  the  following  alleged  contract 
was  executed  by  the  defendant: 

"Detroit,  Mich.,  March  17,  1888. 
Received  of  Waterman's  Real  Es- 
tate Exchange,  one  hundred  dollars, 
as  earnest  on  purchase  of  my  resi- 
dence on  northeast  corner  of  Sec- 
ond and  Bagg  streets,  lot  75  by 
190  ft.,  for  the  sum  of  twenty  thou- 
sand five  hundred  dollars  ($20,500) 
cash.  Possession  given  May  15, 
1888.    $100.    James  T.  Campbell." 

Soon  after  this  the  plaintiff  gave 
the  defendants  two  notes  for  $500 
each.  Later,  and  before  the  deal 
had  gone  any  farther,  the  plaintiff 
discovered  that  there  was  a  prior 
levy  on  the  premises  made  under 
an  execution  against  the  defend- 
ant. The  defendant  tendered  a 
deed  and  the  plaintiff  refused  to 
accept  it  because  of  the  levy.  There- 
after the  defendant  secured  the 
discharge  of  the  levy  and  tend- 
ered a  deed  to  the  plaintiff  but  the 
latter  refused  to  accept  it  and  now 
brings  this   action   against  the  de- 


fendant and  his  wife  to  recover  the 
$1100  he  had  paid  on  the  purchase 
price. 

The  court  held  that  the  plaintiff 
could  not  recover  in  this  action 
because  he  had  sued  the  wife  and 
that  if  he  had  discontinued  his  suit 
against  the  wife  the  decision  would 
have  been  different.  That  the  de- 
fendant's contention  in  regards  to 
this  preliminary  agreement  that  it 
constituted  a  binding  contract  on 
the  plaintiff  could  not  be  sustained. 
That  this  contract  of  purchase  was 
not  one  which  the  defendants  could 
enforce.  It  did  not  name  any  party 
to  whom  the  conveyance  was  to  be 
made  as  grantee,  nor  did  it  fix  the 
time  when  the  payments  were  to  be 
made.  Therefore  this  agreement 
or  receipt  is  not  sufficient  to  satisfy 
the  requirements  of  the  statute  of 
frauds. 

Webster  v.  Brown,  67  Mich. 
328.  The  plaintiff  filed  a  bill  for 
the  specific  performance  of  the  fol- 
lowing alleged  contract  to  convey 
land: 

"Received  of  Albert  Chick,  seven 
ty  five  dollars,  as  part  payment  on 
a  certain  piece  of  land  described 
as  follows:  West  half  of  south- 
east quarter  of  section  eight,  town 
nine  north,  of  range  thirteen  east, 
being  in  Sanlac  County  and  State 
of  Michigan. 

"The  undersigned  agrees  to  make 
and  deliver  to  the  said  Albert  Chick 
a  bond  for  a  warranty  deed  on  or 
before  the  first  day  of  January, 
1870.  Said  bond  is  to  express  the 
several  payments  that  is  to  be 
made,  and  the  amount  remaining  to 
be  paid.  Rob't  G.  Brown.  Dated 
this  fourth  day  of  May,  A.  D.  1869." 

The  plaintiff  holds  the  above 
agreement    as    assignee    of    Chick 


§18] 


STATUTE  OF  FRAUDS 


47 


and  claims  that  this  agreement  is 
sufficient  to  satisfy  the  require- 
ments of  the  statute  of  frauds.  The 
court  held  that  this  agreement  is 
not  one  which  can  be  specifically 
enforced  as  it  does  not  satisfy  the 
statute  of  frauds.  At  most  it  is  but 
an  agreement  to  make  a  land  con- 
tract; this  is  not  a  contract  itself. 
This  agreement  did  not  specify  the 
purchase  price,  and  failed  to  ex- 
press the  time  or  times  of  payment. 

Wardell  v.  Williams,  62  Mich. 
50.  Plaintiff  brought  suit  to  re- 
cover damages  for  the  breach  of  an 
alleged  contract  which  provided  for 
the  conveyance  of  certain  real  es- 
tate from  the  defendant  to  the 
plaintiff. 

The  agreement  upon  which  this 
action  is  based  is  as  follows: 

"Detroit,  September  6.  1884.  Or- 
rin  Wardell,  Esq. — Dear  Sir: — I 
will  sell  you  my  farm,  containing 
116  acres  more  or  less,  situate  on 
Woodward  Avenue,  about  half  mile 
north  of  first  toll  gate,  for  the  sum 
of  $39,000,  viz.,  $12,000  to  be  paid 
in  cash,  and  the  balance  $27,000  to 
be  secured  by  a  mortgage  on  said 
farm,  payable  on  or  before  four 
years  from  the  date  of  said  mort- 
gage, with  interest  at  the  rate  of 
seven  per  cent,  per  annum,  to  be 
paid  semi-annually;  you  to  have 
the  privilege  of  paying  on  account 
of  said  principal  sum,  the  sum  of 
one  thousand  dollars  or  more  at 
any  time  during  said  term  of  four 
years. 

"Said  farm  having  been  subdi- 
vided into  lots,  we  will  agree  to 
the  valuation  of  each  lot,  and,  on 
payment  being  made  on  account  of 
said  mortgage.  I  agree  to  release 
lots  of  equal  value  to  amount  paid, 
the  valuation  of  each  lot  as  agreed 


between  us  to  be  placed  on  plat. 
This  offer  to  remain  open  for  20 
days  from  date.  (Signed)  John  C 
Williams." 

Within  the  twenty-day  period  the 
plaintiff  told  the  defendant  that  he 
would  accept  the  offer  but  he  did 
not  pay  or  tender  the  $12,000  and 
he  asserts  that  the  defendant  stated 
to  him  verbally  that  he  would  ex- 
tend the  time  for  payment  beyond 
the  twenty  days.  The  question  to 
be  determined  here  was  whether 
there  was  a  valid  contract  between 
the  parties.  The  defense  was  based 
upon  the  statute  of  frauds;  the 
statute  providing  that  contracts  for 
the  sale  of  lands  must  be  in  writ- 
ing and  signed  by  the  party  by 
whom  the  sale  is  to  be  made. 

The  defendant  argued  that  this 
was  not  a  completed  contract. 

The  court  held  that  this  memo- 
randum showed  on  its  face  that 
the  minds  of  the  parties  had  not 
met  and  that  it  was  not  evidence 
of  a  completed  agreement,  but 
merely  stated  terms  which  if  ac- 
cepted would  be  the  basis  of  fur- 
ther negotiations  between  the  par- 
ties. The  valuation  of  the  lots  was 
still  to  be  agreed  upon.  WTiere  the 
contract  is  not  complete  in  itself 
it  is  not  sufficient  to  satisfy  the  re- 
quirements of  the  statute.  Further- 
more, in  this  particular  case  the 
plaintiff  is  not  entitled  to  relief 
because  he  has  not  tendered  the 
$12,000  within  the  twenty-day  pe- 
riod and  the  time  for  performance 
of  this  condition  could  not  be  ex- 
tended   by   parol. 

Gault  v.  Stormont,  51  Mich. 
636.  The  plaintiff  was  the  owner  of 
certain  property  which  he  agreed  to 
sell  to  the  defendant  for  one  thou- 
sand  and    fifty    dollars;    defendant 


48 


THE  LAW  OF  LAND  CONTRACTS 


[§19 


§  19.  Effect  of  Void  Agreements  Under  Statute  of  Frauds. 

— A  contract  for  the  sale  of  land  which  is  not  in  writing  and 
therefore  does  not  comply  with  the  statute  of  frauds  is  abso- 
lutely void  and  cannot  be  used  for  a  basis  for  measuring  dam- 
ages or  for  any  other  purpose.64  In  harmony  with  this  prin- 
ciple the  courts  have  held  that  expenses  incurred  in  carry- 


paid  seventy-five  dollars  down  and 
the  plaintiff  gave  him  the  follow- 
ing receipt: 

"Wyandotte,  April  26,  1881.  Re- 
ceived from  George  Stormont  the 
sum  of  seventy  five  dollars  as  part 
of  the  principal  of  ten  hundred  and 
fifty  dollars  on  sale  of  my  house 
and  two  lots  on  corner  of  Superior 
and  Second  streets  in  this  city.  Da- 
vid Gault.  Witness:  C.  W.  Thomas." 

The  understanding  was  that 
plaintiff  was  to  return  home  and 
have  a  deed  executed  by  himself 
and  his  wife,  on  receipt  of  which 
the  defendant  would  pay  the  bal- 
ance of  the  purchase  price.  De- 
fendant was  also  to  be  allowed  to 
go  into  possession  of  the  premises 
whenever  the  tenant  then  in  pos- 
session would  permit  him  to  do  so. 
The  wife  of  the  plaintiff  refused  to 
unite  with  him  in  the  deed  and  upon 
his  failure  to  obtain  his  wife's  sig- 
nature to  the  deed,  the  plaintiff 
through  his  agent  tendered  back 
to  the  defendant  the  $75  which 
had  been  paid  down.  The  defend- 
ant refused  to  accept  this  return. 
Meanwhile  the  defendant  had  ob- 
tained possession  of  the  premises 
from  the  tenant  and  refused  to  va- 
cate when  the  plaintiff  failed  to 
complete  the  agreement.  The  plain- 
tiff brought  this  action  to  recover 
possession   of  the   premises. 

The  court  held  that  there  was  no 
written  evidence  of  the  sale  of  the 


lots  except  the  receipt  for  the  sev- 
enty-five dollars,  and  that  was 
clearly  insufficient  to  answer  the 
requirements  of  the  statute  of 
frauds;  for  though  it  specified  the 
purchase  price,  it  failed  to  express 
the  time  or  times  of  payment.  A 
memorandum  to  be  sufficient  un- 
der the  statute  must  be  complete 
in  itself  and  leave  nothing  to  rest 
in  parol. 

Maynard  v.  Brown,  41  Mich. 
298.  Plaintiff  filed  a  bill  to  com- 
pel the  defendant  to  pay  the 
amount  which  they  had  agreed  upon 
as  the  purchase  price  of  certain 
lands  owned  by  the  plaintiff.  The 
written  memorandum  relating  to 
the  agreement  was  not  signed  by 
the  plaintiff. 

The  court  held  that  this  con- 
tract was  void  under  the  statute 
of  frauds  because  not  signed  by 
the  party  by  whom  the  sale  was 
to  be  made.  A  written  agreement 
to  convey  real  estate  must  be 
signed  by  the  party  by  whom  the 
sale  is  to  be  made,  in  order  to  com- 
ply with  the  requirements  of  the 
statute  of  frauds. 

54.  Sutton  v.  Rowley,  holding 
that  an  unwritten  agreement  to  pay 
for  work  by  giving  a  conveyance  of 
land  is  void  under  the  statute  of 
frauds  and  cannot  be  considered 
as  measuring  damages  or  for  any 
other  purpose.  See  also,  Abel  v. 
Munson,  18  Mich.  306. 


§19] 


STATUTE  OF  FRAUDS 


49 


ing  out  a  void  verbal  agreement  cannot  be  recovered,66  and  a 
promise  made  in  consideration  of  a  void  verbal  agreement  to 
convey  land  is  therefore  without  legal  consideration  and  can- 
not be  enforced  66  where  money  has  been  paid,  however,  as 
part  of  the  purchase  price  upon  a  verbal  agreement  for  the 
purchase  of  land  if  possession  has  not  been  given  and  there 
has  been  no  part  performance,  such  purchase  money  may  be 
recovered  on  theory  that  there  is  no  consideration  therefor, 
the  contract  of  purchase  being  void,67  and  this  same  principle 
applies  even  though  the  agreement  that  the  money  advanced 
should  be  forfeited  in  case  of  failure  to  purchase  as  such  a 
forfeiture  clause  is  but  a  part  of  the  same  contract  and  since 
the  entire  contract  was  void  it  created  no  obligation.58     Not 


55.  Taylor  v.  Boardman,  24  Mich. 
387,  holding  that  a  verbal  contract 
promising  to  purchase  land  is  void. 

56.  Rhea  v.  Myers  Est.,  Ill  Mich. 
140. 

57.  Scott  v.  Bush,  26  Mich.  418, 
holding  that  money  paid  under  a 
verbal  agreement  to  purchase  land 
may  be  recovered  back  for  the  rea- 
son that  the  agreement  is  void  un- 
der the  statutes.  Scott  v.  Bush, 
29  Mich.  523,  holding  that  money 
advanced  under  a  verbal  agreement 
to  purchase  land  may  be  recov- 
ered back  nothwithstanding  that  it 
was  part  of  the  agreement  that 
money  advanced  should  be  for- 
feited in  case  of  failure  to  pur- 
chase. 

58.  Doane  v.  Feathers  Est.,  119 
Mich.  691.  Generally  on  the  sub- 
ject of  void  contracts.  See  Nime 
v.  Sherman,  43  Mich.  45,  affirm- 
ing and  following  the  rule  of  Scott 
v.  Bush,  supra,  Gault  v.  Stormont, 
51  Mich.  636,  holding  that  a  memo- 
randum of  a  sale  of  land  contained 
In  a  receipt  for  part  of  the  pur- 
chase price  is  void  unless  complete 
in  itself  and  leaves  nothing  to  be 
proved  by  parol  evidence. 


See  also  Raub  v.  Smith,  61  Mich. 
543,  holding  that  a  contract  for  the 
formation  of  a  partnership  for  the 
purchase  of  land  for  his  business 
Is  void  and  cannot  be  used  for  any 
purpose. 

See  also,  Wardell  v.  Williams,  62 
Mich.  50,  holding  that  a  written 
offer  to  sell  land  framed  in  such 
terms  as  to  make  further  negotia- 
tions between  the  parties  neces- 
sary was  not  sufficiently  complete 
in  itself  as  to  enable  the  purchaser 
to  consummate  the  contract  by 
accepting  the   offer. 

See  also  Brosman  v.  McGee,  63 
Mich.  454,  holding  that  an  oral 
agreement  whereby  the  plaintiff 
was  to  purchase  certain  lands  on 
joint  account  of  himself  and  de- 
fendant was  of  no  effect  for  any 
purpose. 

See  also,  Ball  v.  Harpham,  140 
Mich.  661,  holding  that  a  verbal 
executory  agreement  to  purchase 
land  subject  to  the  back  taxes 
thereon  is  void  under  the  statute 
of  frauds. 

See  also  Ebert  v.  Cullen,  165 
Mich.  75,  holding  that  a  memo- 
randum of  a  sale  of  land  showing 


50 


THE  LAW  OF  LAND  CONTRACTS 


[§19 


only  is  a  verbal  contract  for  the  sale  or  purchase  of  land  void, 
but  a  verbal  agreement  by  one  to  purchase  an  interest  in  land 
for  another  is  also  void,59  while  the  statement  has  been  re- 
peatedly made  in  various  cases  that  a  verbal  contract  for  the 
sale  of  real  estate  is  void  for  all  purposes,  nevertheless  there 
is  a  line  of  cases  holding  that  where  a  verbal  agreement  has 
been  made  to  convey  land  in  consideration  of  personal  services 
such  contract  may  be  considered  as  estimating  the  value  of 
services  in  an  action  to  recover  therefor,  although  there  has 
been  no  acts  of  part  performance  by  the  promisor.60 

§  20.  Effect  of  Part  Performance  of  Oral  Agreement  to  Sell 
Real  Estate — General  Considerations. — Where  verbal  con- 
tracts for  the  sale  of  real  estate  have  been  partly  performed, 
courts  of  equity  have  in  the  interests  of  substantial  justice 
relaxed  the  rigid  rule  of  law  requiring  contracts  relating  to 
real  estate  to  be  in  writing,  and  have  enforced  such  contracts  in 
a  large  number  of  cases  where  the  failure  to  do  so  would  work 
an  injustice.    From  the  many  decisions61  in  relation  to  partly 


a  receipt  of  part  of  the  purchase 
price  and  a  description  of  the  land 
but  not  stating  the  time  or  times 
of  payment  of  the  sum  remaining 
due  is  insufficient  compliance  of 
the  statute  of  frauds  to  support  a 
bill  for  specific  performance. 

See  also  Hillsberg  v.  Greer,  172 
Mich.  505,  holding  a  contract  insuf- 
ficient where  neither  the  time  of 
payment  nor  rate  of  interest  was 
specified. 

See  also  Harris  v.  Brown,  172 
Mich.    164. 

59.  When  a  promise  is  made  to 
compensate  for  services  by  will  and 
the  promisor  dies  without  so  pro- 
viding the  value  of  the  services 
may  be  rceovered  as  a  claim 
against  the  estate.  In  re.  Williams 
Est.,   106   Mich.  490. 

Faxton  v.  Faxon,  28  Mich.  159; 
Sword  v.  Keith,  31  Mich.  247;  Car- 
michael  v.  Carmichael,  72  Mich.  85; 


Fenton  v.  Emblers,  3  Burrow  1278; 
Jacobson  v.  LeGrange's  Ex'rs,  3 
Johns  199;  Patterson  v.  Patterson, 
13  Johns  379,  Martin  v.  Wrights 
Adm'rs,  13  Wend.  460;  Eaton  v. 
Benton,  2  Hill  576;  Bayliss  v.  Pic- 
ture's Estate,  24  Wis.  651;  Jilson 
v.  Gilbert,  26  Wis.  637;  Little  v. 
Dawson,  4  Dall.  Ill;  Snyder  v.  Cas- 
tor, 4   Yeates,  353. 

60.  See  also,  Rhea  v.  Myers  Est., 
Ill  Mich.  140,  holding  that  a  verbal 
agreement  to  convey  land  in  con- 
sideration of  personal  services  may 
be  considered  in  estimating  the 
value  of  the  service  In  an  action  to 
recover  therefor,  although  there 
has  been  no  acts  of  part  perform- 
ance by  the  promisor. 

61.  See  Pomeroy's  Equitable 
Remedies,  Vol  5,  Sec.  2246,  Fourth 
Edition.  Gates  on  Real  Property, 
Sec.  598,  Fourth  L.  R.  A.  N.  S.,  957. 


§20] 


STATUTE  OF  FRAUDS 


51 


performed  verbal  contracts  for  the  sale  of  land,  the  following 
general  rules  are  deductible: 

1.  Proof  of  the  contract  and  its  terms  must  be  clear,  definite 
and  conclusive.62 

2.  Such  a  part  performance  of  the  contract  that  failure  to 
enforce  it  would  be  a  fraud  on  the  other  party  to  the  contract 
of  such  a  character  that  it  could  not  be  fully  compensated 
by  a  recovery  of  damages  in  a  court  of  law,  either  through 
the  inherent  difficulty  of  estimating  the  damage  or  the  respon- 
sibility of  the  party  against  whom  the  damage  might  be 
sought.63 

3.  The  principle  of  equitable  estoppel  is  sometimes  invoked 
by  the  court  in  order  to  enforce  an  oral  agreement  and  prevent 
a  party  from  taking  advantage  of  his  own  fraud.64 

4.  The  rule  permitting  courts  of  equity  to  decree  specific 
performance  of  agreements  in  cases  of  part  performance,  which 


Relief   Refused   Because  of   Uncer- 
tainty of  the  Contract 

62.  Specific  performance  even  of 
a  binding  contract  is  not  a  matter 
of  right  and  a  court  of  equity  will 
re.fuse  it  and  turn  the  complain- 
ant over  to  his  remedy  at  law,  if 
not  clearly  satisfied  that  it  em- 
bodies a  real  understanding  of  the 
parties.  Chambers  v.  Livermore, 
15  Mich.  381-388;  Smith  v.  Law- 
rence, 15  Mich.  499;  Rust  v.  Con- 
rad, 47  Mich.  499-454;  Blanchard 
v.  Railroad  Company,  31  Mich.  43; 
Fowler  v.  DeLance,  146  Mich.  630. 

Where  the  terms  of  the  contract 
are  uncertain  specific  performance 
will  not  be  decreed.  26  Am.  and 
Eng.  Enc.  Law,  2nd  Edition,  page 
59  and  cases  cited. 

Kelsey  v.  McDonald,  76  Mich. 
188.  Holding  that  the  object  of 
the  statute  of  frauds  was  designed 
to  prevent  dispute  as  to  what  the 
oral  contract  sought  to  be  enforced 
was  and  if  incomplete  or  indefinite, 
specific   performance  would  be  de- 


nied. This  case  also  holds  that 
the  mere  naked  possession  by  the 
complainant  would  not  be  sufficient 
if  there  was  nothing  done  on  the 
land  that  could  not  be  compensated 
in  an  action  for  damages.  Lamb 
v.  Hinman,  46  Mich.  116;  Scott  v. 
Bush,  26  Mich.  418;  Colgrove  v. 
Solomon,  34  Mich.  494;  Nims  v. 
Sherman,  43  Mich.  50-1;  Davis  v. 
Strobridge,  44  Mich.  159;  Demors  v. 
Robinson,  46  Mich.  62;  Scott  v. 
Bush,  29  Mich.  523;  Dwight  v. 
Cutler,  3  Mich.  573;  Bomier  v. 
Caldwell,  8  Id.  463;  Hogsett  v. 
Ellis,  17  Id.  364v;  Abell  v.  Mun- 
son,  18  Id.  418;  Scott  v.  Bush.  26 
Id.  418;  DeMoss  v.  Robinson,  46  Id. 
62;  Wetmore  v.  Neuberger,  44  Id. 
362;  Gates,  on  real  property,  Sec. 
598. 

63.  Pearson  v.  Gardner,  202  Mich. 
360;  Fowler  v.  Isabel,  202  Mich. 
572;  Pendergast  v.  Pendergast,  206 
Mich.  525. 


64.  Lyle    v. 
250. 


Munson,    213    Mich. 


52  THE  LAW  OF  LAND  CONTRACTS  [§  20 

do  not  comply  with  the  statute  of  frauds,  has  received  express 
recognition  by  statute  which  provides  that  nothing  therein 
contained  (referring  to  the  statute  of  frauds),  should  be  con- 
strued to  abridge  the  power  of  the  courts  of  chancery  to  com- 
pel specific  performance  of  agreements  in  cases  of  part  per- 
formance of  such  agreements.65 

While  part  performance  is  essential  in  this  class  of  cases 
in  order  to  entitle  the  purchaser  to  equitable  relief,  neverthe- 
less, part  performance  is  not  in  all  cases  the  essential  test.  In 
cases  involving  fraud,  the  defendant  may  be  debarred  from 
invoking  the  statute  of  frauds  upon  the  doctrine  of  estoppel. 
Said  the  Supreme  court  in  one  case :  "Part  performance,  while 
an  essential  in  the  test,  does  not  in  itself  comprehend  the 
whole  doctrine  of  equitable  relief  in  this  class  of  cases.  Mis- 
leading fraudulent  conduct  by  act  or  acquiescence,  is  the  under- 
lying thought  which  moves  the  Chancery  court  under  the  prin- 
ciple of  equitable  estoppel  to  deny  resort  to  the  statute  of 
frauds  as  an  instrument  of  fraud."  The  question  is  not  alone 
one  of  part  performance,  but  part  performance  with  the  at- 
tending circumstances,  making  a  case  of  fraud  against  which 
a  court  of  equity  ought  to  relieve.  Thus,  where  a  contract 
was  executed  on  Sunday  and  the  purchaser  had  taken  posses- 
sion and  the  defendant  attempted  to  claim  that  the  contract 
was  void  by  reason  of  having  been  executed  on  Sunday,  the 
court  refused  to  allow  such  defense  to  prevail  and  enforced 
the  oral  agreement.66 

While  the  foregoing  general  principles  are  correct  state- 
ments of  the  law,  there  has  been  a  number  of  late  cases  where 
the  courts  have  enforced  the  foregoing  rules  with  much  liberal- 
ity and  have  granted  specific  performance  of  oral  agreements 
wherein  not  much  has  been  done  by  way  of  part  performance. 
(See  note  67.) 

In  the  accompanying  note  we  have  set  out  those  cases  in 
one  group,67  where  the  courts  have  held  part  performance  suf- 

65.  Compiled  Laws  of  1915,  Sec-  Verbal  Contracts  Partly  Performed 
tion  11979.  — Illustrative  Cases — Relief 

Granted 

66.  Lyle    v.    Munson,    213     Mich. 

67.  Lvle  v.  Munson,  supra.  Where 
2ri0 

the  defendant  under  a  lease  with 

the  option  to  buy  took  possession 


§20] 


STATUTE  OF  FRAUDS 


53 


of  property,  took  steps  to  construct 
a  barn  and  hog  pen;  obtained  and 
had  upon  the  place  sufficient  ma- 
terial ready  for  their  construction, 
consisting  of  lumber,  scantling  and 
timbers,  and  had  posts  set  in  the 
ground  preparatory  to  building  a 
hog  pen,  and  the  written  contract 
was  held  to  be  void  because  exe- 
cuted on  Sunday,  the  court  en- 
forced the  oral  agreement  upon 
which  the  written  agreement  had 
been  based  and  refused  to  allow 
the  defendant  to  invoke  the  stat- 
ute of  frauds  on  the  grounds  of 
equitable    estoppel. 

Nickerson  v.  Nickerson,  209  Mich. 
134.  Where  a  father  agreed  with 
his  son  that  he  would  convey  at 
some  future  time  a  certain  farm, 
upon  the  condition  that  the  latter 
move  upon  the  same,  clear  it,  work 
it  and  make  a  home  upon  it,  and 
said  contract  was  fully  performed 
by  said  son;  was  held  not  too  in- 
definite and  uncertain  to  admit  of 
equitable  relief,  and  specific  per- 
formance was  granted. 

Loesy  v.  Hutchinson,  209  Mich. 
318.  Where  parties  entered  into 
an  oral  lease  in  which  it  was 
agreed  to  make  a  written  lease  for 
three  years  and  in  pursuance  of 
such  agreement,  plaintiff  went  into 
possession  of  said  premises,  paid 
the  stipulated  rent  in  advance  and 
on  defendant's  refusal  to  make 
certain  agreed  repairs,  made  them 
themselves  at  a  cost  of  approxi- 
mately $200.00.  Held  sufficient  part 
performance  to  take  an  agreement 
out  of  the  operation  of  the  statute 
of  frauds  and  to  entitle  plaintiff  to 
a  decree. 

Engel  v.  Engel,  209  Mich.  276. 
Where  certain  heirs  entered  into 
an  oral  agreement,  one  of  them  to 


have  a  farm  belonging  to  the  fath- 
er's estate  and  the  defendant,  his 
brother,  was  to  have  the  personal 
property.  Where  parties  so  con- 
tracting, each  took  possession  of 
the  property  described  in  such 
agreement  and  remained  in  such 
possession  which  was  acquiesced 
in  by  both  parties  for  a  period  of 
two  years,  the  courts  held  that  to 
be  such  part  performance  as  to 
take  the  case  out  of  the  statute 
and   grant  a   specific   performance. 

Pendergast  v.  Pendergast,  206 
Mich.  525.  Where  a  certain  son 
agreed  with  the  father  and  entered 
into  an  oral  contract  when  the 
father  was  eighty  years  of  age,  that 
in  consideration  of  said  son's  re- 
maining on  the  farm,  keeping  the 
home  intact,  and  furnishing  him 
with  such  care  as  he  needed  dur- 
ing the  rest  of  his  life,  that  he 
would  deed  said  farm  to  him.  This 
contract  was  fully  performed  on 
the  part  of  the  son.  Held  that 
specific  performance  of  such  oral 
agreement  be  decreed. 

Pearson  v.  Gardner,  202  Mich. 
360.  In  proceedings  for  the  specific 
performance  of  a  contract  for  the 
sale  of  land,  where  the  vendees 
paid  part  of  the  purchase  price, 
entered  into  possession,  and  exer- 
cised acts  of  ownership  changing 
the  character  of  the  freehold,  al- 
though the  contract  itself  was  in- 
sufficient to  satisfy  the  statute  of 
frauds,  a  court  of  equity  will  award 
a  decree  for  specific  performance. 
Fowler  v.  Isbell,  202  Mich.  572. 
On  a  bill  by  a  daughter  against  her 
father  for  the  specific  performance 
of  an  oral  contract  to  convey  to 
plaintiff  a  house  and  lot,  where 
the  record  shows  that  plaintiff  has 
performed     on     her     part,     under 


54 


THE  LAW  OF  LAND  CONTRACTS 


[§20 


authority  of  section  11979,  3  Comp. 
Laws  1915,  the  decree  of  the  court 
below  awarding  specific  perform- 
ance will  be  affirmed. 

Stuart  v.  Mattern,  141  Mich.  686. 
Payment  of  one  thousand  dollars 
on  a  purchase  price  of  $2,500.00, 
taking  possession  and  expending 
$2,000.00  as  improvements,  consti- 
tutes such  a  part  performance  of 
a  contract  to  convey  land  made  by 
a  tenant  in  common  as  makes  it 
inequitable  to  permit  the  other 
tenant  who  had  full  knowledge  of 
the  facts  to  repudiate  the  contract. 
In  this  case  it  was  also  held  that 
a  written  contract  to  convey  land 
naming  the  purchaser  made  by  an 
agent  duly  authorized  in  writing 
and  signed  by  him  in  behalf  of  his 
principal  is  valid  even  though  the 
name  of  the  purchaser  was  not  dis- 
closed to  the  vendor  before  the 
contract  was  made. 

Stonehouse  v.  Stonehouse,  156 
Mich.  43.  Where  a  son  desired  to 
engage  in  business  for  himself  and 
his  father  persuaded  him  to  remain 
at  home  agreeing  that  if  he  would 
do  so  he  would  compensate  him 
therefor,  that  such  son  did  so  re- 
main and  thereafter  the  father 
verbally  agreed  with  him  to  make 
him  a  deed  for  certain  lands  and 
where  it  appeared  that  the  son  had 
expended  large  sums  of  money  in 
improvements,  the  court  held  that 
he  was  the  owner  of  the  equitable 
title  and  was  entitled  to  the  spe- 
cific performance. 

Pike  v.  Pike,  121  Mich.  170.  A 
parol  agreement  by  parents  to  deed 
their  farm  to  their  son  if  he  would 
surrender  his  lease  to  his  farm  on 
which  he  was  living  and  come  to 
live  with  them  is  taken  out  of  the 
statute  of  frauds  by  his  accepting 


the  offer,  surrendering  his  lease 
and  moving  onto  the  farm  with  the 
parents  and  a  bill  for  specific  per- 
formance will  lie. 

Lamb  v.  Hinman,  46  Mich.  112. 
A  son  agreed  with  his  father  to  re- 
move with  his  family  to  the  lat- 
ter's  house,  take  care  of  the  father 
and  turn  over  to  him  annually  a 
certain  proportion  of  the  crops,  in 
consideration  of  all  of  which  the 
father  was  to  deed  to  the  son  a 
certain  parcel  of  land,  which  he 
promised  to  do,  but  did  not.  The 
only  uncertainty  related  to  the  time 
at  which  the  deed  was  to  be  given. 
Held,  that  the  case  was  sufficient 
to  sustain  a  bill  for  specific  per- 
formance against  the  administrator 
and  heirs  at  law  of  the  father. 

The  reason  why  taking  posses- 
sion of  land  under  an  oral  contract 
is  such  part  performance  of  the 
contract  as  will  sustain  a  bill  for 
its  specific  performance,  when  pay- 
ment of  the  purchase  price  is  not, 
is  that  in  the  former  case  there  is 
no  certain  basis  for  estimating 
damages  for  the  breach. 

Cilley  v.  Burkholder,  41  Mich.  749. 
Where  a  survey  of  the  land  and 
keeping  possession  for  several  years 
was  held  to  be  a  sufficient  part 
performance  to  entitle  the  vendee 
to  specific  performance. 

Davis  v.  Strobridge,  44  Mich.  157. 
Where  the  vendee  took  possession 
of  the  property  and  paid  a  portion 
of  the  purchase  price  and  did  a 
small  amount  of  clearing,  this  was 
held  to  be  a  sufficient  part  per- 
formance to  entitle  him  to  specific 
performance. 

Delevan  v.  Wright,  110  Mich.  143 
In  this  case  a  verbal  agreement  by 
grantee  to  pay  an  encumbrance  on 
land  to  date  and  to  provide  a  home 


§20] 


STATUTE  OF  FRAUDS 


55 


ficient  and  in  another  group  have  collected  the  cases  where 
part  performance  has  been  held  insufficient.68 


for  the  grantor  was  held  to  have 
been  taken  out  of  the  statute  of 
frauds  by  part  performance. 

Smellings  v.  Sally,  103  Mich.  580. 
In  this  case  a  tenant  cleared  cer 
tain  lands  under  a  verbal  agree- 
ment that  he  should  have  the  right 
to  occupy  the  same  for  two  years, 
specific  performance  was  decreed 
against  the  landlord  and  the  tenant 
was  given  the  occupancy  of  the 
land  for  that  period. 

Karmichael  v.  Karmichael,  72 
Mich.  76.  In  this  case  a  mother 
had  agreed  to  leave  property  to  cer- 
tain of  her  children  by  will  and 
afterwards  received  all  the  benefits 
of  her  agreement.  She  was  com- 
pelled to  transfer  the  property  in 
accordance  with  her  contract. 

Sigler  v.  Sigler,  108  Mich.  591.  In 
this  case  a  husband  and  wife  under 
a  verbal  agreement  divided  their 
personal  property  upon  the  condi- 
tion that  the  husband  should  have 
the  right  to  occupy  a  certain  por- 
tion of  the  premises,  and  should 
have  the  use  of  a  certain  vineyard. 
Specific  performance  was  decreed. 

Partially    Performed    Verbal    Con- 
tracts— Relief  Denied 

68.  Buhler  v.Trombley,139  Mich. 
557.  Mere  occupancy  of  the  dwell- 
ing and  the  making  of  ordinary  re- 
pairs and  changes  to  suit  the  prem- 
ises to  the  needs  of  the  occupant 
paid  for  out  of  partnership  funds  be- 
longing to  the  promisor  and  prom- 
isee are  not  sufficient  part  per- 
formance to  take  parol  promise  to 
convey  out  of  the  statute  of  frauds. 
It  is  well  settled  that  payment  of 
the  whole  or  part  of  the  purchase 


price  is  not  sufficient  to  take  the 
case  out  of  the  operation  of  the 
statute  of  frauds. 

The  courts  have  adopted  various 
lines  of  reasoning  to  support  this 
doctrine,  some  holding  that  payment 
of  money  should  not  be  sufficient 
to  support  an  action  for  specific 
performance,  as  it  may  readily  be 
repaid,  then  the  parties  will  be 
just  where  they  were  before,  and 
have  considered  the  legal  remedy 
of  the  vendee  sufficient  to  deny  him 
the  equitable  jurisdiction.  (See 
Pomeroy's  Equitable  Remedies,  Vol. 
5,  Sec.  2246,  4th  Edition;  Gates  on 
Real  Property,  Sec.  598;  4  L.  R.  A., 
N.  S.  957.) 

Klett  v.  Klett,  175  Mich.  224. 
Where  a  complainant  sued  to  spe- 
cifically enforce  an  oral  contract 
to  convey  real  and  personal  prop- 
erty to  him  in  consideration  of  sup- 
port and  services  to  be  rendered  to 
the  father  and  mother  of  complain- 
ant, he  was  not  entitled  to  the  relief 
prayed  for  where  the  contract  pro- 
vided that  if  the  son  became  dis- 
satisfied or  the  parties  were  unable 
to  live  peaceably  together,  he  was 
not  bound  to  continue  to  perform 
the  contract.  It  was  held  in  this 
case  that  the  rights  growing  out  of 
the  oral  contract  made  by  the  hus- 
band could  not  affect  the  home- 
stead interest  of  the  wife. 

Fleming  v.  Fleming,  202  Mich. 
615.  An  oral  contract  by  husband 
and  wife  agreeing  to  give  a  son 
one-half  of  their  farm,  which  was 
also  their  homestead  in  considera- 
tion of  his  moving  upon  the  farm, 
working  it  and  caring  for  them  un- 
til their  death,  was  void,  not  being 


56 


THE  LAW  OF  LAND  CONTRACTS 


[§21 


§  21.  Actions  at  Law  on  Verbal  Contracts  Partly  Performed. 

— No  action  at  law  can  be  maintained  on  a  verbal  contract 
partly  performed,  as  the  doctrine  of  part  performance  is  purely 
a  creation  of  equity  and  is  not  recognized  at  law.    It  therefore 


in  writing  and  signed  by  the  wife 
as  required  by  Sec.  2,  Article  14, 
Const.  But  where  the  son  had  for 
eleven  years  performed  his  part  of 
the  contract,  the  court  decreed  the 
margin  above  the  homestead  ex- 
emption to  be  subject  to  a  lien  for 
the  value  of  his  services,  together 
with  any  money  or  property  he  may 
have  furnished,  less  the  amount  he 
may  have  received. 

Harrison  v.  Eassom,  208  Mich. 
685.  Specific  performance  of  a  con- 
tract, whether  written  or  oral,  is 
not  a  matter  of  strict  legal  right, 
but  rests  in  the  sound  discretion  of 
the  court.  Where  possession  is 
taken  under  an  oral  contract  in 
order  to  become  an  element  of  part 
performance,  such  possession  must 
be  exclusive  and  notorious  under  a 
claim  of  ownership.  Where  plain- 
tiff went  into  possession  of  land  as 
defendant's  tenant  and  continued 
in  unbroken  possession  from  the 
time  of  entry,  merely  continuing 
their  possession  under  a  different 
claim  of  right  than  the  tenancy  un- 
der which  they  were  let  in,  could 
not  in  itself  constitute  an  act  of 
part  performance  of  the  oral  con- 
tract conveyed.  Relief  in  this  case 
denied. 

Kelsey  v.  McDonald,  76  Mich.  188. 
Where  plaintiff  sued  to  recover 
$5,000  which  he  had  paid  on  an 
oral  agreement  for  the  purchase  of 
certain  lands,  a  verdict  was  directed 
in  his  favor.  The  defendant  con- 
tended that  the  contract  was  taken 
out  of  the  statute  of  frauds  by  such 
payment  and   the   acceptance   of  a 


deed  for  the  land  and  by  taking 
possession  of  the  same,  the  court 
held  that  these  acts  were  not  suf- 
ficient part  performance  to  entitle 
defendant  to  prevail  as  to  the  valid- 
ity of  the  contract. 

Kinyon  v.  Young,  44  Mich.  339. 
In  this  case  it  was  held  that  to  en- 
title a  complainant  to  enforce  a 
parol  contract  as  against  the  owner 
of  a  legal  title,  you  must  show: 
1st — A  contract,  the  terms  of  which 
are  clear  and  complete  so  that  no 
reasonable  doubt  can  exist  respect- 
ing its  enforcement  according  to 
the  understanding  of  the  parties,  if 
enforcement  seems  equitable.  2nd 
— Such  acts  of  part  performance  as 
according  to  equitable  principles 
will  justify  this  enforcement,  not- 
withstanding the  failure  to  comply 
with  the  statute  of  frauds  in  making 
it.  3rd — Payment  of  the  purchase 
price. 

Dragoo  v.  Dragoo,  50  Mich.  573 
Specific  performance  cannot  be 
granted  on  the  basis  of  the  parol 
contract  unless  there  have  been  im- 
portant acts  of  part  performance 
raising  strong  equities  in  complain- 
ant's favor. 

Peckham  v.  Walsh,  49  Mich.  181. 
Holding  that  it  is  not  payment  alone 
which  will  take  the  case  out  of  the 
statute,  but  this  with  possession 
and  acts  done  as  owner  in  reliance 
thereon  that  cannot  ordinarily  be 
compensated  in  damages  which  en- 
title a  party  to  the  enforcement  of 
the  verbal  agreement  relating  to  the 
sale  of  lands. 


§22] 


STATUTE  OF  FRAUDS 


57 


follows  that  no  distinctively  legal  action  can  be  maintained 
upon  an  oral  contract  which  is  within  the  statute  of  frauds.69 
When  a  vendor  disposes  of  property  to  a  bona  fide  purchaser 
for  value,  without  notice,  the  vendee  may  maintain  a  bill  in 
equity  to  recover  damages  from  the  vendor.70  The  jurisdiction 
rests  upon  the  ground  that  equity  alone  can  grant  relief. 

§  22.  When  Disposal  of  Land  Contract  in  Escrow  Advisable. 

— Where  the  parties  live  in  widely  separated  localities  and 
have  been  brought  together  for  the  purpose  of  consummating 
a  preliminary  agreement,  or  when  for  any  other  reason,  it 
appears  that  difficulty  may  be  experienced  in  securing  the 
signatures  to  the  land  contract  after  the  execution  of  the  pre- 
liminary agreement,  it  is  sometimes  advisable  to  have  the  land 
contract  executed  by  all  the  parties  and  deposited  in  escrow 
with  some  bank  or  trust  company  pending  the  bringing  down 
of  the  abstract  or  the  making  of  the  payment  which  entitles 
vendee  to  delivery  of  the  land  contract  and  possession  of  the 
property. 

When  the  foregoing  course  is  pursued  and  there  is  more  than 
one  vendor,  care  should  be  taken  to  specify  how  among  the 
vendors  such  payments  shall  be  divided. 

If  the  land  contract  is  delivered  in  escrow  properly  executed, 
such  a  course  may  avoid  the  necessity  of  executing  any  pre- 
liminary agreement  at  all,  as  the  supreme  court  has  held  that 
the  deposit  of  deeds  in  escrow  is  a  sufficient  compliance  with 
the  statute  of  frauds.71 


69.  Pomeroy's  Equity  Jur.  2283, 
sec.  ed.  Phinizy  v.  Guernsey,  111 
Ga.  346,  349,  78  Am.  St.  Rep.  207. 
36  S.  E.  796;  Skinner  &  Sons  v. 
Houghton,  92  Md.  68,  84  Am.  St. 
Rep.  92  Md.  68,  84  Am.  St.  Rep. 
485,  48  Atl.  85,  etc.,  Dry  Dock  Co.; 
Skinner  &  Sons  v.  Houghton,  92 
Md.  68,  Am.  St.  Rep.  485,  48  Atl. 
85,  Am.  St.  Rep.  485,  48  Atl.  85; 
Reed  v.  Lukens,  44  Pa.  St.  200,  84 
Am.  Dec.  425. 


70.  Pomeroy's  Equity  Jur.  Sec. 
2284.  White  v.  Nutt,  1  P.  Wms.  61- 
Coles  v.  Trecothick,  9  Ves.  234, 
246;  Kenney  v.  Wexhan,  6  M&dd 
355,  357;  Jackson  v.  Lever,  3  Bro. 
C.  C.  605. 

71.  Supple  v.  Wheeler,  210  Mich. 
672;  Thatcher  v.  St.  Andrews 
Church,  supra;  Stevens  v.  Castel,  63 
Mich.  117;  Roup  v.  Roup,  136  Mich. 
385;  Wisconsin,  etc.,  R.  Co.  v.  Mc- 
Kenna,  139  Mich.  43;  Miller  v. 
Beardslee,  175  Mich.  414;  Loomis 
v.  Loomis,  178  Mich.  221. 


58 


THE  LAW  OF  LAND  CONTRACTS 


[§23 


§  23.  Loss  by  Fire  Pending  Purchase. — After  a  land  contract 
has  been  concluded  and  possession  thereunder  given  to  the 
purchaser  upon  whom  does  the  loss  to  the  real  estate  from 
fire  or  accident  fall  ?  Unquestionably  upon  the  vendee.72  But 
does  the  same  rule  apply  when  an  executory  contract  for  the 
sale  of  real  estate  has  been  duly  concluded,  but  possession  not 
given?  By  the  weight  of  authority  it  is  held  that  the  loss  in 
such  cases  falls  on  the  vendee,  upon  the  principle  that  as  soon 
as  a  binding  contract  has  been  entered  into  for  the  purchase 
of  the  property,  the  vendee  is  then  entitled  to  any  increase  or 
depreciation  in  the  value  of  such  property  and  should  there- 
fore be  held  to  any  loss  which  may  occur. 

Of  course,  the  parties  may,  by  stipulation,  agree  that  the 
vendor  shall  assume  this  risk,  but  in  the  absence  of  stipulation 
the  rule  is  as  above  stated. 

Since  equity  throws  the  burden  of  loss  by  fire  on  the  vendee 
it  naturally  follows  that  the  insurance  money  should  go  to  the 
vendee  and  so  the  courts  everywhere  in  America  hold  while, 
the  vendor  is  usually  entitled  to  collect  the  insurance  money,  he 
is  regarded  by  equity  as  a  trustee  for  the  vendee.73 


72.  Pomeroy's  Equity  Jur.  sec- 
ond edition,  Sec.  2282. 

Good  v.  Jarrard,  93  S.  C.  43  L. 
R.  A.  (N.  S.)  383;  Waite  v.  Stan- 
ley, 88  Vt.  407  L.  R.  A.  (N.  S.), 
1916  C. 

Sewell  v.  Underhill,  197  N.  Y. 
168,  27  L.  R.  A.  (N.  S.)  233,  134 
Am.  Sr.  Rep.  863,  18  Ann.  Cases 
795;  Fouts  v.  Foundray,  31  Okl. 
221,  Ann.  Cas.  1913  E,  301,  38  L. 
R.  A.  (N.  S.)  251;  Brewer  v.  Her- 
bert, 30  Md.  301,  96  Am.  Dec.  582; 
Phinizy  v.  Guernsey,  111  Ga.  346, 
78  Am.  St.  Rep.  207,  36  S.  E.  796; 
Davidson  v.  Hawkeye  Ins.  Co.,  71 
Iowa  532,  60  Am.  Rep.  818,  32  N.  W. 
514;  Goldman  v.  Rosenberg,  116  N. 
Y.  78,  15  Am.  St.  Rep.  410,  22  N.  E. 
397  (Court  here  acknowledged  gen 
eral  rule  that  loss  should  fall  on 
vendee,  but  said  it  did  not  apply  to 
the  case  by  the  terms  of  the  con- 


tract) ;  Skinner  &  Sons  v.  Hough- 
ton, 92  Md.  St.  Rep.  485,  48  Atl. 
85;  Copper  v.  Brown,  76  N.  J.  Eq. 
406,  139,  Am.  St.  Rep.  770,  74  Atl. 
987  (purchase  at  judicial  sale) ; 
Good  v.  Jarrard,  93  S.  C.  229,  43  L. 
R.  A.  (N.  S.)  383,  76  S.  E.  698. 
Where  the  state  of  the  title  is  such 
at  the  time  of  the  loss  that  specific 
performance  could  not  then  be  en- 
forced; Wells  v.  Calnan,  107  Mass. 
514,  9  Am.  Rep.  65  (Action  at  law 
by  vendor) ;  Gould  v.  Murch,  70  Me. 
288,  289,  35  Am.  Rep.  325;  Powell 
v.  Dayton,  etc.,  R.  R.,  12  Or.  488, 
8  Pac.  544,  14  Or.  356,  12  Pac.  665, 
16  Or.  33,  8  Am.  St.  Rep.  251,  16 
Pac.   863. 

73.  Marion  v.  Wolcott,  68  New 
Jersey  Eq.  20.  Plaintiff  contracted 
to  sell  a  certain  house  and  lot  to 
the  defendant.  Before  the  purchase 
price  was  paid  the  house  was  de- 


§23] 


STATUTE  OF  FRAUDS 


59 


If  by  reason  of  the  happening  of  some  unforeseen  contingency 
the  estate  entirely  fails  the  loss  nevertheless  falls  on  the  ven- 
dee, for  instance  where  the  vendee  purchased  a  life  estate 
and  the  life  dropped  or  where  the  agreement  was  for  the  pur- 
chase of  an  annuity  for  the  vendee's  life,  and  the  vendee  dies 
before  the  first  payment  is  due.74 


stroyed  by  fire  and  plaintiff  brings 
this  action  to  recover  from  the  de- 
fendant, the  vendee,  the  amount  of 
the  insurance  which  he  had  received 
for  the  loss. 

The  court  held  that  under  a  con- 
tract for  sale  of  lands  purchaser  be- 
comes equitable  owner  and  takes 
benefits  and  must  also  stand  losses 
which  accrue.  This  insurance  was 
to  protect  defendant's  interest  and 
he  is  entitled  to  same. 

Kimberlin  v.  Templeton,  55  Ind. 
App.  155,  102  N.  E.  160.  The  court 
stated  the  general  rule  in  contracts 
for  the  sale  of  real  estate  where 
loss  occurs,  to  be  as  follows:  In  a 
contract  for  the  sale  of  real  estate 
the  vendee  becomes  the  equitable 
owner;  the  vendee  secures  all  bene- 
fits and  assumes  all  risks  of  owner- 
ship. 

Manning  v.  North  British  Ins.  Co.. 
123  Mo.  App.  456—99  S.  W.  1095. 
Plaintiff  had  entered  into  a  con- 
tract to  sell  a  third  party  certain 
real  property;  before  property  was 
paid  for  and  before  vendee  went  in- 
to possession  the  house  thereon  was 
destroyed  by  fire.  The  insurance 
policy  contained  the  provision  that 
change  of  ownership  would  avoid 
the  policy.  Question  was  whether 
there  had  been  a  change  of  owner- 
ship or  not.  The  court  held:  A 
valid  contract  of  sale  of  real  estate 
puts  equitable  title  in  vendee  even 
though  he  is  not  in  possession.  Any 
damage  to  property  under  such  cir- 


cumstances falls  on  vendee.  Hence 
there  was  such  a  change  of  owner- 
ship as  to  avoid  the  policy. 

Sewell  v.  Underhill,  197  N.  Y. 
168,  27  L.  R.  A.  (N.  S.)  233.  The  de- 
fendant contracted  to  sell  certain 
real  property  to  the  plaintiff.  Be- 
fore completion  of  payment  there- 
for, but  after  part  payment  had 
been  made  and  plaintiff  had  entered 
into  possession  the  house  on  the 
property  was  burned.  Plaintiff 
now  seeks  to  recover  the  value  of 
the  house. 

Court  held:  Where  property  is 
destroyed  by  fire  without  fault  of 
either  party  before  final  papers  are 
completed,  but  after  contract  has 
been  executed,  the  loss  falls  on  the 
vendee. 

74.  Fouts  v.  Foudray,  31  Okl.  221 
—38  L.  R.  A.  (N.  S.)  251.  Plain- 
tiff sold  defendant  certain  property. 
Deed  placed  in  escrow  to  be  de- 
livered on  payment  of  a  promissory 
note  executed  by  the  defendant. 
The  house  was  destroyed  by  fire 
and  defendant  refused  to  pay  the 
note,  claiming  that  the  considera- 
tion had  been  destroyed.  Held: 
Equitable  title  passed  immediately 
on  execution  of  contract  to  the  ven- 
dee. Where  buildings  are  destroyed 
by  fire  between  date  of  contract  of 
sale  and  execution  of  deed  and  de- 
livery thereof  the  loss  must  be 
borne  by  the  vendee. 

Marks  v.  Tichenor,  85  Ky.  536— 
4  S.  W.  225.     Plaintiff  sold  certain 


60  THE  LAW  OP  LAND  CONTRACTS  [§  24 

§  24.  Sufficiency  of  Tender  of  Performance. — It  is  not  always 
necessary  for  the  vendee  to  actually  tender  to  the  vendor  the 
amount  of  the  purchase  price  or  of  the  initial  payment  to  con- 
stitute a  valid  and  sufficient  tender  of  performance  on  his 
part.  If  the  vendee  appears  at  the  appointed  time  and  place 
ready  and  willing  to  pay,  and  the  vendor  fails  to  appear,  a 
sufficient  tender  has  been  made  by  the  vendee  without  any 
farther  action  on  his  part,  and  it  is  not  necessary  for  him  to 
prepare  and  tender  a  deed  to  be  executed  by  the  other  party.76 

As  a  general  rule  a  court  of  equity  will  not  aid  a  vendee 
who  has  delayed  in  making  payments  required  by  a  contract 
provided  at  the  time  he  made  such  agreement  he  had  no  rea- 
sonable expectation  for  believing  he  would  be  able  to  comply 
with  the  terms  of  the  contract.76  Nevertheless  a  court  is  not 
ordinarily  concerned  where  a  tender  is  made  whether  the  money 
for  such  tender  was  furnished  by  the  plaintiffs  themselves  or 
advanced  by  one  who  expected  to  purchase  from  the  vendee 
after  they  acquired  title.77 

In  the  absence  of  such  a  provision  in  the  contract  time  will 
not  be  held  to  be  of  essence  thereof  and  the  fact  that  the  ven- 
dee's tender  of  performance  may  be  made  a  few  days  after  the 
date  fixed  in  the  contract  will  not  necessarily  terminate  the 
contractual  relations.78 

real    estate    to   the    defendant   and  76.  Waller     v.     Lieberman,     214 

latter  executed  a  promissory  note  in  Mich.  445;   Lake  Erie  Land  Co.  v. 

payment  therefor.     Before  delivery  Chilinski,    197    Mich.    214.      Where 

of  deed  the  house  was  destroyed  by  specific  performance  was  refused,  it 

fire.     Defendant  refused  to  pay  the  appearing  among  other  things  that 

note.     Held:      On   sale   of   land    it  the    vendee   had    entered    into    the 

becomes  the  property  of  the  vendee  contract  without  any  bona  fide  be- 

from    the    execution,    delivery    and  nef  on  his  part  that  he  could  swing 

acceptance  of  the  written  contract;  the   deal   unless   something  turned 

and    if   a    building    thereon    is    de-  up  or  he   might  succeed   in  trans- 

stroyed  by  fire  between  the  time  of  ferring  his  contract  to  other  hands, 
such  contract  of  sale  and  the  time 

fixed  for  delivery  of  possession  by  77.  Marussa   v.   Temerowski,  204 

vendor,  the  vendee  and  not  the  ven-  Mich.  271 ;  Waller  v.  Lieberman,  214 

dor  bears  the  loss.  Mich.  445. 

75.  Frazer  v.  Hovey,  195  Mich.  78.  Waller  v.  Lieberman,  supra; 
169;  Daley  v.  Litchfield,  10  Mich.  Marussa  v.  Temerowski,  supra; 
29,  36  Cyc.  P.  706.  Lozon  v.   McKay,  203   Mich.   364. 


§25] 


STATUTE  OF  FRAUDS  61 


The  decisions  further  hold  that  if  the  parties  pursue  such  a 
course  of  conduct  as  to  indicate  that  performance  is  not  ex- 
pected in  accordance  with  the  strict  letter  of  the  contract,  such 
conduct  may  constitute  a  waiver  of  the  right  to  require  strict 
performance.79 

While  at  law  where  a  time  is  fixed  for  the  performance  of  a 
contract  it  is  considered  to  be  of  the  essence  thereof,  it  is  other- 
wise in  a  court  of  equity  and  its  execution  will  be  decreed  not- 
withstanding the  time  has  elapsed  for  its  performance  unless 
there  has  been  culpable  negligance  or  willful  delay  on  the  part 
of  him  who  is  seeking  the  aid  of  the  court.80 

From  the  foregoing  rule  of  law  it  would  seem  that  much 
more  care  must  be  exercised  respecting  tender  where  the  par- 
ties seeking  redress  expect  to  obtain  such  redress  in  a  court 
of  law  rather  than  in  a  court  of  equity. 

§  25.  Briefs  Used  in  Late  Michigan  Cases  Involving  Statute 
of  Frauds. 

OGOOSHEVITZ  v.  SAMPSON,  211  Mich.  184— 

(a)  Statement  of  Fact. 

(b)  Brief  for  Plaintiff. 

(c)  Brief  for  Defendant. 
OGOOSHEVITZ  v.  SAMPSON,  211  Mich.  184— 

(a)  Statement  of  Fact. — The  above  parties  entered  into  an  agreement 
for  the  sale  of  land,  the  writing  being  as  follows:  "Detroit,  Michigan, 
March  2nd,  1916.  Received  of  I.  Ogooshevitz,  $100,00  as  first  payment 
on  lot  known  as  westerly  18  feet  of  lot  seven  (7)  and  easterly  thirty-four 
(34)  feet  of  lot  eight  (8),  being  52  feet  on  the  south  side  of  Palmer 
Avenue,  West  of  Beaubien  Street,  for  the  sum  of  $5,720.00,  terms  as  fol- 
lows: $620.00  more  on  delivery  of  land  contract  or  deed  and  remaining 
$5,000.00  on  or  before  one  (1)  year  from  the  date  of  contract,  purchaser 
to  receive  an  abstract  brought  down  to  date  before  contract  is  made,  to 
show  free  and  clear  title.    Six  per  cent  interest.    Geo.  L.  Sampson." 

Plaintiff  alleged  that  he  tendered  the  amount  due  and  defendant  refused 
to  carry  out  the  terms.  Suit  was  started  by  the  plaintiff  for  damages. 
Upon  the  trial  of  the  case,  the  question  arose  whether  the  above  writing 
was  sufficient  to  satisfy  the  statute  of  frauds,  and  whether  parol  testi- 
mony was  admissible  to  vary  the  terms  of  the  above  writing. 

From  a  judgment  for  an  insufficient  amount  for  plaintiff,  plaintiff  ap- 
peals.    Reversed. 

(b)  Brief  for  Plaintiff.— The  agreement  was  a  complete,  full,  and  valid 

79.  Curry  v.  Curry,  213  Mich.  309,  SO.  Waller    v.    Lieberman,    supra 

39  Cyc.  P.  1384;   Waller  v.  Lieber-      and  cases  there  cited, 
man,  supra. 


62  THE  LA"W  OF  LAND  CONTRACTS  [§  25 

agreement  between  the  parties.  Refusal  to  carry  out  or  perform  its 
terms  was  a  sufficient  basis  for  an  action  of  damages  or  a  suit  for 
specific  performance.  Mull  v.  Smith,  132  Mich.  618;  Smith  v.  Mathis, 
174  Mich.  262;  Miller  v.  Smith,  140  Mich.  524;  Brin  v.  Michalski,  188 
Mich.  400;  Walsh  v.  Oakman,  199  Mich.  688. 

The  trial  court  erred  in  allowing  parol  testimony  to  vary  the  terms 
of  the  above  agreement  in  the  absence  of  fraud  or  misrepresentation. 
Smith  v.  Mathis,  174  Mich.  262;  Wolf  v.  Meyantz,  184  Mich.  452;  Ogooshe- 
vitz  v.  Arnold,  197  Mich.  203;  Stange  v.  Wilson,  17  Mich.  341;  Vanderkarr 
v.  Thompson,  19  Mich  82;  Kerwin  v.  Baker,  199  Mich.  688. 

(c)  Brief  for  Defendant. — The  writing  made  by  these  parties  was  clearly 
memoranda,  and  indicated  that  the  parties  would  get  together  at  a  later 
date  and  enter  into  a  contract,  and  the  trial  court  properly  called  atten- 
tion to  the  statute  of  frauds  applicable  to  this  case. 

"An  instrument  relating  to  the  sale  and  conveyance  of  land,  if  suffi- 
cient to  comply  with  the  essential  requisites  of  a  deed,  may,  according 
to  the  intention  of  the  parties,  operate  either  as  an  absolute  conveyance 
or  as  a  mere  bond  for  title  or  contract  to  convey." 

39  Cyc.  1299,  D.  1. 

When  the  contract  itself  is  in  writing  and  signed  by  both  parties,  the 
writing  is  the  contract.  When  the  memorandum  of  the  oral  contract  Is 
In  writing  and  signed  by  the  vendor,  it  is  not  the  contract  but  a  memo- 
randum, which  makes  it  binding  upon  him  if  accepted  by  vendee.  Mull 
v.  Smith,  132  Mich.    168. 

Parol  testimony  is  admissible  to  bring  out  the  circumstances  and  allow 
the  court  to  view  the  circumstances  as  the  parties  viewed  them,  and  so  to 
judge  of  the  meaning  of  the  words  and  of  the  correct  application  of  the 
language  to  the  thing  described.  Goddard  v.  Foster,  17  Wall.  (U.  S.) 
1421;  Brown  v.  McGran,  14  Peters  (U.  S.)  493;  Jennings  v.  Sherwood,  8 
Conn.  127;  First  Nat.  Bank  v.  Dana,  79  N.  Y.  112. 
COOPER  v.  PIERSON,  212  Mich.  659— 

(a)  Statement  of  Fact. 

(b)  Brief  for  Plaintiff. 

(c)  Brief  for  Defendant. 
COOPER  v.  PIERSON,  212  Mich.  659— 

(a)  Statement  of  Fact. — Plaintiff  received  the  following  option  from 
the  defendants:  "May  26th,  1919.  In  consideration  of  One  ($1.00)  Dol- 
lars, we  the  undersigned,  agree  to  give  option  to  Morris  Cooper,  on  Lots 
831,  833  and  835,  North  Saginaw  Street,  for  the  sum  of  Two  Hundred  Sixty 
and  no/100  Dollars  per  front  foot.  It  is  agreed  that  first  payment  be 
made  five  thousand  dollars.  Balance  to  be  secured  by  deed  of  trust  for 
five  years  with  six  per  cent  interest.  This  option  will  expire  June  26, 
1919. — Fred  D.  Pierson,  Robert  L.  Pierson,  Fannie  G.  Pierson." 

On  the  last  day  of  the  option,  plaintiff  met  the  defendants  and 
requested  them  to  have  the  papers  drawn.  Upon  failure  to  find  defend- 
ant's attorney  in,  an  extension  of  ten  days  was  agreed  to  upon  payment 
of  $100.00.     The   extension   read   as   follows:      "$100.00.     June   26,    1919. 


§  25]  STATUTE  OF  FRAUDS  63 

Received   from   Morris   Cooper,   One   Hundred   and   no/100   Dollars,   part 

payment  on  purchase  price  of  Lots  No.  ,  known  in  option  furnished 

to  Morris  Cooper  in  option  dated  May  26th,  1919,  the  revised  number 
known  as  number  821  North  Saginaw  Street,  Flint,  Michigan,  deed  to  be 
drawn  on  or  before  ten  days.     Fred  D.  Pierson." 

The  defendants  refused  to  convey  and  plaintiff  filed  this  bill  for  specific 
performance. 

The  court  held  that  the  option  was  insufficient  to  satisfy  the  statute 
of  frauds  because  it  did  not  designate  the  property  intended  to  be  con- 
veyed, it  not  appearing  in  what  state,  county  or  village  the  property 
was  situated,  but  reading  the  option  and  the  ten-day  extension  together, 
the  extension  supplied  what  was  lacking  in  the  option,  and  the  extension 
being  signed  by  Fred  Pierson  only,  the  option  is  binding  upon  him  only. 

The  court  held  that  plaintiff  was  entitled  to  a  decree  against  Fred 
Pierson  only.     Plaintiff  and  Fred  Pierson  appeal.     Affirmed. 

(b)  Brief  for  Plaintiff. — The  option  was  sufficient  to  satisfy  the  statute 
of  frauds,  as  all  parties  knew  what  property  was  intended  and  the 
defendants  testified  that  they  owned  only  one  parcel  on  North  Saginaw 
Street. 

The  court  has  passed  upon  the  question  of  description  many  times 
and  have  held  the  following  sufficient:  "My  house  and  two  lots  on 
corner  of  Superior  and  Second  Sts.,  this  city."  Gault  v.  Starmont,  51 
Mich.  636.  "Schoolcraft  Store."  Francis  v.  Barry,  69  Mich.  311.  "My 
place."  Garvey  v.  Parkhurst,  127  Mich.  368.  "House  and  lots  known  as 
706  Antoine  St."  Ogooshevitz  v.  Arnold,  197  Mich.  203.  "House  and  lot 
situated  Nos.  347  and  349  Alexandrine  Avenue  East,  Detroit."  Brin  v. 
Mlchalski,  188  Mich.  400.  "He  who  sells  property  on  a  description  given 
by  himself,  is  bound  to  make  good  that  description;  and  if  it  be  untrue 
In  a  material  point,  although  the  variance  be  occasioned  by  a  mistake, 
he  must  still  remain  liable  for  that  variance."  McFerran  v.  Taylor,  3 
Cranch  (U.  S.)  270;  29  Am.  &  Eng.  Ency.  810. 

(c)  Brief  for  Defendant. — Five  things  are  necessary  in  order  to  make 
a  valid  memorandum  under  the  statute — the  parties,  property,  considera- 
tion, terms,  and  time  of  performance.  Ebert  v.  Culle,  165  Mich.  75; 
Lumber  Co.  v.  Iron  Co.,  101  Mich.  577;  Gault  v.  Starmont,  51  Mich.  636; 
Rosenbaum  v.  Tyszka,  192  Mich.  457;  Droppers  v.  Marshall,  206  Mich.  560. 

In  Droppers  v.  Marshall,  supra,  the  memorandum  relied  upon  contained 
a  correct  description  of  the  premises  with  the  exception  of  the  section 
number  which  was  left  out.  The  court  held  that  on  account  of  the  omis- 
sion of  the  section  number,  the  memorandum  was  fatally  defective. 


CHAPTER  III 

FORMS  OF  PRELIMINARY  CONTRACTS 

LAND  CONTRACTS 

ASSIGNMENTS  OF  LAND  CONTRACTS 

ESCROW  AGREEMENTS 

POWERS  OF  ATTORNEY 

§  26.  Short  Form  Preliminary  Contract  for  the  Sale  of  Real  Estate  for 

Cash. 
§  27    Preliminary  Agreement  Short  Form. 
§  28.  Preliminary  Contract  for  the  Sale  of  Real  Estate — Form  Favorable 

to  Vendee. 
§  29.  Form  Favorable  to  the  Vendor. 
§  30.  Escrow   Memorandum   for  the   Disposition   of  a   Land   Contract   in 

Escrow. 
§  31.  Defective  Forms  of  Land  Contract. 
§  32.  Form  of  Land  Contracts — General. 
§  33.  Wayne  County  Abstract  Company's  Form. 
§  34.  Forms  of  Land  Contract — Union  Trust  Company  Form. 
§  35.  Detroit  Land  Contract  Form. 
§  36.  Form  of  Land  Contract  with  Special  Tax  Clause. 
.§  37.  Contract  for  Sale  of  Farm  Land  on  Long  Time. 
§  38.  Form  for  Recording  Payments  on  Land  Contracts. 
§  39.  Assignment  of  Land  Contract,  Long  Form. 

§  40.  Assignment  of  Land  Contract,  Short  Form,  with  Consent  of  Vendor. 
§  41.  Contract  for  the  Sale  of  City  Lots  Vendor  to  Advance  Funds  for 

Building. 
§  42.  Power  of  Attorney  to  Lease  or  Sell  Land. 

§  26.  Short  Form  Preliminary  Contract  for  the  Sale  of  Real 
Estate  for  Cash. — Where  real  estate  is  sold  for  cash,  the  con- 
tract, of  course,  is  greatly  simplified,  and  many  subjects  which 
in  the  preliminary  contract  for  the  execution  of  a  land  contract 
must  be  dealt  with,  may  be  omitted  altogether. 

The  following  is  a  simple  form  which  contains  the  essential 
elements  of  the  contract : 

John  Doe,  hereinafter  known  as  the  vendor,  in  consideration 

of  the  price  of  $ ,  a  part  payment  on  which  in  the  sum 

of  $ is  by  him,  hereby  acknowledged,  does  hereby  agree 


§26] 


FORMS    OF   PRELIMINARY    CONTRACTS  65 


to  sell  and  convey  to  Richard  Roe,  hereinafter  known  as  pur- 
chaser, the  following  described  real  estate  situated  in  the  City 

of  ,  County  of  ,  State  of  Michigan,  to  wit: 

(Here  describe  real  estate.) 


The  vendor  agrees  to  deliver  abstract  of  title  for  examination 
to  the  purchaser  within  five  days  from  date,  and  purchaser 
shall  have  ten  days'  additional  time  in  which  to  examine  said 
abstract  and  if  same  shall  show  a  merchantable  title,  free  and 
clear  from  all  encumbrances,  vendor  shall  prepare  and  execute 
a  warranty  deed  containing  release  of  dower  rights  for  such 
real  estate,  and  concurrently  with  the  delivery  of  such  deed, 
the  balance  of  purchase  price  shall  be  paid.  In  the  event  title 
to  such  real  estate  shall  be  defective,  the  time  for  closing  this 
transaction  shall  be  extended  a  sufficient  length  of  time  to 
permit  such  title  to  be  corrected,  but  in  no  case  to  exceed  six 
months  from  date.  In  the  event  it  shall  be  found  impossible 
to  correct  defects,  if  any  shall  exist  in  said  title,  then  vendor 
shall  return  to  the  purchaser  the  initial  payment  made  hereon. 
If  purchaser  shall  fail  to  pay  the  balance  of  such  purchase 
price,  and  the  same  shall  become  due,  the  vendor  shall  have 
the  right  to  retain  the  payment  made  herein  as  liquidated 
damages  for  breach  of  this  agreement.  Possession  shall  not 
be  given  to  the  purchaser  until  full  purchase  price  shall  have 
been  made. 

Dated  this  day  of 

,  A.  D Vendor. 


Purchaser. 

§  27.  Preliminary  Agreement,  Short  Form. — This  contract 
made  and  entered  into  by  and  between  John  Doe  and  Mary  Doe, 
his  wife,  hereinafter  referred  to  as  vendors  and  Richard  Roe 
hereinafter  referred  to  as  purchaser,  Witnesseth : 

The  vendors  agree  to  sell  and  the  purchaser  agrees  to  pur- 
chase for  the  price  of Dollars  upon  the  terms  and 

conditions  hereinafter  set  out,  the  following  described  real 


QQ  THE  LAW  OF  LAND  CONTRACTS  [§  27 

estate,  to-wit:  (here  describe  the  property  by  legal  description 
if  possible,  although  the  street  number  together  with  the  city 
and  state  will  be  sufficient). 

Said  purchase  price  shall  be  payable  as  follows:  The  sum 
of  Dollars  in  cash,  receipt  of  which  is  hereby  ac- 
knowledged and  the  farther  sum  of Dollars  (herein- 
after insert  the  amount  to  be  paid  upon  the  execution  of  land 
contract)  to  be  paid  upon  the  due  execution  and  delivery  of 
the  land  contract  for  the  sale  of  the  above  described  premises, 
at  which  time  the  purchaser  shall  be  given  possession  of  said 
real  estate ;  the  balance  of  said  purchase  price  shall  be  payable 

at  the  rate  of Dollars  per  month  including  interest 

at  the  rate  of  6%  per  annum,  payable  monthly. 

Purchaser  shall  receive  an  abstract  prepared  by  (here  insert 
the  name  of  the  firm  who  will  prepare  the  abstract)  brought 
down  to  date  showing  a  merchantable  title,  which  abstract  of 

title  shall  be  delivered  to  the  purchaser  within days  from 

date,  and  if  the  seller  shall  fail,  neglect,  or  refuse  to  deliver 
such  abstract  on  or  before  such  date,  the  time  for  closing  this 
transaction  by  the  execution  of  said  land  contract,  shall  be 
postponed  the  period  of  such  default.  If  such  abstract  of  title, 
when  presented,  shall  prove  defective,  the  seller  shall  have  a 
reasonable  length  of  time  to  correct  such  defects,  if  any  there 
be,  considering  the  nature  and  character  thereof.  (If  property 
is  sold  by  an  individual  having  a  mortgage  thereon,  this  fact 
should  be  specified.)  [If  vendors  do  not  hold  legal  title,  but 
themselves  are  buying  on  a  land  contract,  this  fact  should  be 
specified.] 

Purchaser  shall  pay  all  taxes  and  special  assessments  which 
may  accrue  from  and  after  the  execution  of  said  land  contract, 
and  said  contract  shall  contain  clauses  providing  that  the  pur- 
chaser shall  keep  such  property  insured  in  a  responsible  fire 
insurance  company  to  be  selected  by  sellers,  in  an  amount  to 
be  approved  by  the  sellers.  Such  insurance  shall  be  kept  up 
and  in  force  until  the  purchase  money  is  fully  paid.  Also  that 
purchaser  shall  keep  the  buildings  and  other  improvements 
on  said  premises  in  a  good  state  of  repair,  and  shall  pay 
promptly  all  taxes  and  assessments  that  may,  from  time  to 
time,  accrue  on  said  premises,  and  shall  upon  the  execution 


8  28]  FORMS    OF    PRELIMINARY    CONTRACTS  67 

of  said  land  contract,  enter  said  property  for  taxation  in  their 
own  names. 

Further,  that  in  the  event  the  purchaser  shall  fail,  neglect, 
or  refuse  to  meet  the  payments  herein  provided  for,  and  carry 
out  the  terms  and  conditions  of  said  contract,  then  the  seller 
shall,  upon  such  failure,  have  the  right  to  declare  such  contract 
void,  and  to  retain  whatever  may  have  been  paid  hereon  in  the 
premises,  together  with  the  improvements  thereon,  as  stipu- 
lated damages,  and  may  consider  and  treat  the  purchaser  as 
their  tenants  holding  over  without  permission,  and  may,  with- 
out notice,  written  or  otherwise,  take  possession  of  the  prem- 
ises, and  remove  the  purchaser. 

All  rentals  shall  be  adjusted  at  time  of  execution  of  land 
contract. 

In  witness  whereof,  the  parties  have  hereunto  set  their 
hands  the  day  and  year  above  written. 


Both  buyer  and  seller  should  sign  this  form  of  preliminary 
agreement. 

§  28.  Preliminary  Contract  for  the  Sale  of  Real  Estate — Form 
Favorable  to  Vendee. — If  a  form  of  contract  is  desired  specially 
favorable  to  the  vendee,  such  form  can  be  secured  by  omitting 
from  the  form  of  contract  set  forth  in  the  preceding  section, 
the  following  clauses : 

1.  The  clause  requiring  vendee,  in  case  any  action  is  brought 
for  the  enforcement  of  the  contract,  to  pay  the  mortgage  tax 
and  a  certain  attorney  fee. 

2.  The  clause  permitting  vendor  to  declare  the  contract  for- 
feited upon  default  in  meeting  any  of  the  payments. 

3.  The  provision  permitting  vendor  to  place  an  unlimited 
mortgage  on  the  premises. 

4.  The  provision  permitting  vendor  to  serve  a  notice  of  for- 
feiture by  mail  or  by  delivery  to  the  premises. 


gg  THE  LAW  OF  LAND  CONTRACTS  [§  28 

5.  The  clauses  prohibiting  the  assignment  of  the  contract, 
and  by  adding  the  following  additional  provisions : 

It  is  further  agreed  by  and  between  the  parties  that  all  gas 
ranges  together  with  the  fixtures  thereof  now  situated  on  said 
premises  shall  pass  with  the  sale  of  said  real  estate. 

If  there  is  any  other  property  about  which  some  question 
might  be  raised  as  to  whether  or  not  it  passed  with  the  real 
estate,  a  provision  should  be  inserted  in  such  contract  that  such 
property  shall  be  included  in  the  sale. 

While  it  is  true  that  the  law  imposes  upon  the  vendor  the 
duty  of  delivering  the  premises  in  substantially  the  same  con- 
dition as  when  the  preliminary  contract  was  executed,  never- 
theless it  will  avoid  misunderstanding  and  possible  litigation 
by  incorporating  such  a  provision  in  the  contract.  The  follow- 
ing clause  seems  to  meet  the  requirements : 

"The  party  of  the  first  part  contracts  and  agrees  to  deliver 
said  premises  to  the  party  of  the  second  part  in  substantially 
the  same  condition  as  said  premises  are  now  in,  and  if  any 
windows,  lights,  or  fixtures  belonging  to  said  real  estate  shall 
be  broken  between  the  date  of  signing  this  preliminary  agree- 
ment and  date  of  the  execution  of  the  land  contract  and  the 
surrender  of  possession  of  said  premises,  the  party  of  the  first 
part  shall  be  liable  for  such  breakage,  and  agrees  to  stand  the 
expense  of  placing  said  premises  in  the  same  condition  as  they 
are  now  in." 

§  29.  Form  Favorable  to  the  Vendor. — This  is  a  form  es- 
pecially favorable  to  the  vendor.  It  differs  from  the  usual  form 
of  land  contract  in  the  following  particulars : 

(a)  It  contains  a  clause  authorizing  vendor  to  serve  a  no- 
tice of  forfeiture  by  mail  on  the  vendee  or  by  delivering  same 
to  the  premises. 

(b)  It  compels  the  vendee  to  pay  the  specific  mortgage  tax 
and  an  attorney  fee  in  the  event  of  forfeiture  of  contract. 

(c)  It  provides  that  in  the  event  title  should  prove  defective, 
vendor  shall  have  a  reasonable  length  of  time  to  perfect  title. 

(d)  It  provides  in  he  event  vendee  shall  fail  to  make  neces- 
sary repairs,  vendor  may  effect  such  repairs  and  charge  them 
against  the  contract. 


§29] 


FORMS    OF    PRELIMINARY    CONTRACTS  69 


(e)  It  provides  that  upon  default  in  making  payments  ven- 
dor shall  have  the  right  to  declare  the  entire  balance  due  upon 
the  contract. 

(f )  It  provides  that  in  the  event  the  vendee  shall  assign  the 
contract,  reception  of  payment  by  the  vendor  from  the  as- 
signee, shall  not  be  deemed  to  be  an  implied  consent  of  such  an 
assignment.  This  contract  is  very  harsh  in  its  provisions  to- 
wards the  vendee  and  counsel  for  the  vendee  would  be  justi- 
fied in  refusing  to  accept  such  an  agreement,  except  under  very 
unusual  conditions. 

This  contract  made  and  entered  into  this  (here  insert  date) 
by  and  between  (here  insert  residence)  hereinafter  referred 
to  as  party  of  the  first  part  and  (here  insert  name  of  vendee) 
of  (here  insert  residence  of  vendee)  hereinafter  referred  to 
as  party  of  the  second  part,  Witnesseth : 

The  said  party  of  the  first  part,  in  consideration  of  the  sum 
of  (here  insert  amount  to  be  paid)  to  be  duly  paid,  hereby 
agrees  to  sell  unto  the  party  of  the  second  part  all  that  certain 
piece  or  parcel  of  land  lying  and  being  situate  in  the  (here 

insert  where  property  is  located)  in  the  County  of and 

State  of  Michigan,  and  more  particularly  known  and  described 
as  (here  described  property)  for  the  sum  of  (here  insert  con- 
sideration) dollars,  which  the  said  party  of  the  second  part 

agrees  to  pay  to  the  party  of  the  first  part,  as  follows:  

dollars  at  the  date  hereof,  and  the  remaining dollars 

representing  the  balance  of  the  purchase  price  in  the  following 

manner,  to  wit:  dollars  on  or  before  days 

from  date,  at  which  time  the  parties  hereto  agree  to  execute 
and  deliver  a  land  contract  embodying  the  terms,  conditions 
and  stipulations  herein  set  forth  and  concurrently  possession 
of  said  property  shall  be  given  to  party  of  the  second  part. 
The  remainder  of  said  purchase  price  shall  be  paid  in  monthly 
installments  at  the  rate  of dollars  per  month  includ- 
ing interest  at  the  rate  of  six  per  cent,  on  all  sums  which  may 
from  time  to  time  remain  unpaid  on  the  balance  of  said  pur- 
chase price,  said  interest  to  be  computed  monthly  from  the 
date  of  the  execution  of  the  said  land  contract.  Said  party 
of  second  part  from  and  after  the  date  of  the  execution  of 


70  THE  LAW  OF  LAND  CONTRACTS  [§  29 

said  land  contract  and  the  taking  possession  by  him  of  said 
real  estate  agrees  to  pay  all  taxes  and  assessments  extraordi- 
nary as  well  as  ordinary  that  shall  be  taxed  or  assessed  on 
said  premises  from  and  after  such  date  until  said  sum  shall  be 
fully  paid  as  aforesaid. 

It  is  further  agreed  that  said  land  contract  when  executed 
shall  contain  the  following  clauses  and  provisions : 

(a)  Party  of  the  second  part  further  agrees  to  enter  for 
taxation  in  his  own  name  and  pay  within  forty  (40)  days  after 
the  same  shall  become  payable,  all  taxes,  assessments,  extra- 
ordinary, as  well  as  ordinary,  that  may  be  levied  thereon,  in- 
cluding the taxes  for  the  year  19....,  also  in  case  party 

of  the  first  part  is  obliged  to  bring  any  action  for  the  enforce- 
ment of  this  contract,  party  of  the  second  part  will  pay  the 
specific  mortgage  tax  of  $5.00  per  thousand  dollars  of  the 
amount  secured,  and  all  costs  of  such  action,  including  a  rea- 
sonable attorney  fee  for  serving  notice  of  termination  and  rep- 
resentation of  first  party  in  court,  not  to  exceed  $10.00.  All 
such  taxes,  assessments,  costs,  and  expenses  shall,  if  not  paid 
by  second  party  upon  demand,  be  added  to  the  balance  of  the 
principal  sum  due  hereunder  and  shall  bear  interest  thereafter 
at per  cent,  per  annum. 

(b)  Party  of  the  second  part  will  keep  all  buildings  and 
improvements  upon  and  to  be  placed  upon  said  premises  in- 
sured in  a  responsible  insurance  company  which  party  of  the 
first  part  shall  have  the  option  of  selecting  if  he  so  desires, 
in  an  amount  to  be  approved  by  first  party  for  the  benefit  of 
first  party,  until  the  purchase  money  is  fully  paid ;  and  the  said 
party  of  the  second  part  shall  and  will  keep  the  buildings  and 
all  other  improvements  upon  said  premises  in  good  repair. 
Should  party  of  the  second  part  fail  to  keep  said  buildings  and 
improvements  insured,  or  to  make  necessary  repairs  to  prevent 
damage  to  the  buildings,  party  of  the  first  part  may  effect  such 
insurance,  and  may  cause  said  repairs  to  be  made  and  the  ex- 
pense thereof  shall  be  added  to  the  principal  sum  due  here- 
under and  bear  interest  at  six  per  cent,  per  annum  until  paid. 

(c)  Party  of  the  second  part  accepts  this  contract  subject 
to  all  or  any  building  restrictions  shown  in  the  chain  of  title, 
and  agrees  to  conform  to  same,  and  when  the  premises  are 


§29] 


FORMS    OF    PRELIMINARY    CONTRACTS  71 


finally  conveyed  to  him,  will  accept  a  deed  subject  to  such  re- 
strictions. 

(d)  Party  of  the  first  part  shall  have  the  right  to  place 
a  mortgage  upon  said  premises  for  any  part  of  the  unpaid 
balance,  and  party  of  the  second  part  upon  paying  this  contract 
down  to  said  mortgage  will  accept  a  deed  subject  to  said  mort- 
gage and  will  assume  and  pay  same. 

(e)  Time  shall  be  of  the  essence  of  this  contract,  and  if  sec- 
ond party  shall  fail  to  make  any  of  the  payments  or  perform 
any  of  the  conditions  above  set  forth,  in  the  manner  and  at 
the  time  above  limited  therefor,  party  of  the  first  part  shall 
immediately  after  such  failure  have  the  right  to  declare  this 
contract  terminated,  and  may  thereupon  retain  whatever  may 
have  been  paid  hereon,  and  the  premises,  together  with  all 
buildings  and  improvements,  as  stipulated  damages  for  the 
breach  of  this  contract,  and  rent  for  the  use  of  said  premises. 
In  such  event  the  premises  shall  be  surrendered  to  first  party 
and  said  first  party  shall  have  the  right  to  enter  and  repossess 
same,  and  second  party  shall  be  deemed  and  treated  as  a 
tenant  or  tenants  holding  over  without  permission.  Any  no- 
tice of  such  termination  may  be  given  to  second  party  by  mail- 
ing same  to  his  last  known  address,  or  by  delivery  to  the 
premises.  In  addition  to  the  foregoing  remedy,  but  not  in 
limitation  thereof,  first  party  shall,  in  case  of  default  of  second 
party,  have  the  right  to  declare  the  entire  balance  due  upon 
this  contract  and  proceed  to  immediate  collection  thereof,  either 
by  suit  at  law  or  equity. 

(f)  Upon  the  execution  of  this  contract,  and  so  long  as 
party  of  the  second  part  shall  not  have  defaulted  thereunder, 
party  of  the  second  part  shall  have  possession  of  said  premises, 
and  upon  payment  to  first  party  of  the  sums  chargeable  here- 
on and  the  performance  of  all  agreements  herein,  in  the  manner 
and  at  the  times  above  limited,  party  of  the  first  part  upon 
surrender  of  this  contract  will  execute  and  deliver  to  said  party 
of  the  second  part  a  good  and  sufficient  warranty  deed  of  said 
premises  warranting  same  against  all  liens  and  encumbrances, 
except  such  as  may  have  accrued  on  said  land  or  buildings 
thereon  subsequent  to  the  date  hereof,  by  or  through  the  acts 


72  THE  LAW  OF  LAND  CONTRACTS  [§29 

of  negligence  of  any  party  or  parties  other  than  party  of  the 
first  part  hereto  and  except  any  and  all  restrictions  heretofore 
imposed  upon  or  against  the  use  of  said  premises,  and  will 
also  furnish  an  abstract  of  title  showing  marketable  title  in 
first  party  or  parties. 

(g)  Party  of  the  second  part  shall  not  assign  this  contract 
without  the  consent  of  party  of  the  first  part  being  first  en- 
dorsed in  writing  hereon,  and  no  payments  received  by  first 
party  upon  this  contract  after  such  assignment  shall  be  deemed 
or  considered  an  implied  consent  to  such  assignment. 

It  is  further  agreed  that  the  party  of  the  first  part  shall 
furnish  the  party  of  the  second  part  within  ten  days  from  date, 
an  abstract  of  title  brought  down  to  date,  which  abstract  shall 
show  a  merchantable  title  in  party  of  the  first  part. 

It  is  further  agreed  that  should  the  title  to  said  real  estate 
prove  to  be  defective,  the  part  of  the  first  part  shall  have 
additional  time  in  which  to  perfect  said  title,  such  additional 
time  in  no  case  to  exceed  six  months. 

If  party  of  the  first  part  himself  holds  the  property  under 
land  contract,  then  state  as  follows:  "Which  abstract  of  title 
shall  show  a  good  marketable  title  in  (here  name  vendors  of 
the  party  of  the  first  part) . 

It  is  further  agreed  that  this  contract  shall  convey  no  equity 
to  party  of  the  first  part  in  said  premises  and  in  the  event  said 
party  of  the  second  part  fails,  neglects,  or  refuses  to  make 

said  payment  of dollars  and  to  execute  the  said  land 

contract  as  herein  provided,  then  the  party  of  the  first  part 
hereof  may  retain  any  sums  paid  hereunder  as  liquidated 
damages  on  the  failure  of  said  party  of  the  second  part  to  per- 
form this  contract  in  accordance  with  the  terms  and  conditions 
thereof. 

In  witness  hereof,  the  parties  have  hereunto  set  their  hands 
this day  of 


In  the  presence  of 


§30] 


FORMS    OF    PRELIMINARY    CONTRACTS  73 


§  30.  Escrow  Memorandum  for  the  Disposition  of  a  Land 
Contract  in  Escrow. — 

(Insert  date  and  place.) 

It  is  hereby  agreed  by  and  between  the  parties  hereto  that 

the  attached  land  contract  shall  be  placed  in  escrow  with  the 

Trust  Company  to  be  held  by  such  Trust  Company 

until  the  initial  payment  provided  for  therein  of  $ 

shall  have  been  paid  to  such  Trust  Company,  whereupon  the 
said  Trust  Company  shall  at  once  deliver  said  contract  to  the 
vendors  named  therein,  and  shall  remit  said  payment  to  the 
vendors  respectively,  share  and  share  alike. 

It  is  further  agreed  that  if  said  sum  of  $ ,  the  initial 

payment  above  provided  for,  shall  not  have  been  paid  on  or 
before  15  days  from  date  hereof  (here  insert  date  to  correspond 
with  situation  of  the  parties)  then  this  agreement  shall  be  of 
no  further  force  or  effect  and  the  vendors  may  retain  all  pay- 
ments made  hereunder  as  liquidated  damages  and  said  Trust 
Company  is  hereby  authorized  to  deliver  forthwith  said  land 
contract  to  the  vendors  hereof  and  time  shall  be  deemed  to  be 
of  the  essence  of  this  contract. 


Vendors 


Vendees. 
Receipt  and  Certificate  by  Custodian. 

The  undersigned  Trust  Company  of  the  State  of 

...,  does  hereby  acknowledge  receipt  of  the  above  re- 
ferred land  contract  for  the  uses  and  purposes  as  above  stated 
and  agrees  to  hold  and  dispose  of  the  same  pursuant  to  the 
foregoing  instructions. 

In  witness  whereof  the  said  Trust  Company  has  hereunto 
set  its  hand  and  seal  this dav  of A.  D.  19 


Bv. 


74  THE  LAW  OF  LAND  CONTRACTS  [§31 

§  31.  Defective  Forms  of  Land  Contract. — It  is  advisable 
from  the  standpoint  of  the  vendee,  to  insert  in  the  land  con- 
tract a  provision  requiring  a  vendor  to  furnish  an  abstract  of 
title  to  the  real  estate  he  seeks  to  sell,  showing  a  marketable 
title  in  such  vendor.  Certain  printed  forms  of  land  contracts 
widely  used  in  the  City  of  Detroit  do  not  contain  any  provision 
of  this  character  and  should  therefore  be  avoided,  unless  cor- 
rected by  the  insertion  of  such  a  provision. 

§  32.  Form  of  Land  Contracts — General. — This  contract  made 
and  entered  into  this  (here  insert  date)  by  and  between  (here 
insert  name  of  vendor)  of  (here  insert  residence)  hereinafter 
referred  to  as  party  of  the  first  part  and  (here  insert  name 
of  vendee)  of  (here  insert  residence  of  vendee)  hereinafter  re- 
ferred to  as  party  of  the  second  part,  Witnesseth, 

The  said  party  of  the  first  part,  in  consideration  of  the  sum 
of  (here  insert  amount  to  be  paid)  to  be  duly  paid,  hereby 
agrees  to  sell  unto  the  party  of  the  second  part  all  that  certain 
piece  or  parcel  of  land  lying  and  being  situate  in  the   (here 

insert  where  property  is  located)  in  the  County  of 

and  State  of  Michigan  and  more  particularly  known  and  de- 
scribed as  (here  describe  property)  for  the  sum  of  (here  in- 
sert considerations)  dollars  which  the  said  party  of  the  second 
part  agrees  to  pay  to  the  party  of  the  first  part  as  follows: 

dollars  at  the  date  hereof,  and  the  remaining,  (here 

designate  how  payments  are  to  be  made)  with  interest  from 

on  all  sums  at  any  time  unpaid  hereon  at  the  rate  of 

per  cent,  per  annum  till  due,  and  thereafter  at  the 

rate  of per  cent,  per  annum  till  paid,  payable 

herefrom. 

Said  party  of  the  second  part  as  part  of  the  purchase  price 
also  agrees  to  pay  all  taxes  and  assessments,  extraordinary  as 
well  as  ordinary,  that  shall  be  taxed  or  assessed  on  said  prem- 
ises from  the  date  hereof  until  said  sum  shall  be  fully  paid 
as  aforesaid,  within  twenty-five  days  after  the  same  shall  be- 
come payable.  If  default  be  made  on  the  part  of  said  party 
of  the  second  part  in  making  such  payment  of  taxes  or  assess- 
ments, said  party  of  the  first  part  shall  have  the  right  to  pay 
the  same  and  have  the  payment  due  hereon  from  the  time  of 


8  321  FORMS    OF   PRELIMINARY    CONTRACTS  75 

such  payment  with  interest  at  per  cent,  per  annum 

till  paid. 

Said  party  of  the  first  part  agrees  that  before  or  upon  the 
completion  of  this  contract  he  will  furnish  to  said  second 
party  an  abstract  of  title  to  the  above  described  premises, 
which  abstract  of  title  shall  show  a  good,  marketable  title  in 
the  said  party  of  the  first  part,  free  from  all  liens  and  en- 
cumbrances, except  such  as  may  have  accrued  subsequent  to 
the  date  hereof  by  or  through  the  acts  or  negligence  of  said 
party  of  the  second  part  or  his  assigns. 

And  it  is  also  agreed,  by  and  between  the  parties  to  these 
presents  that  the  said  party  of  the  second  part  shall  and  will 
pay  the  expenses  of  keeping  the  buildings,  erected  and  to  be 
erected  upon  the  lands  above  contracted  for,  insured  against 
loss  and  damage  by  fire  (the  policies  to  be  held  by  the  party  of 
the  first  part),  with  loss,  if  any,  payable  to  vendor  as  his  in- 
terest may  appear,  by  insurers  and  in  manner  and  amount  ap- 
proved by  the  said  party  of  the  first  part,  such  expense  to  be 
chargeable  herein  if  paid  by  the  party  of  the  first  part,  with 

interest  thereon  at  the  rate  of per  cent,  per  annum.    And 

that  the  said  party  of  the  first  part,  on  receiving  the  afore- 
mentioned payment  in  full,  at  the  times  and  in  the  manner 
above  mentioned,  and  all  sums  chargeable  in  his  favor  hereon, 
and  upon  the  surrender  of  the  duplicate  of  this  contract,  shall 
at  his  own  proper  cost  and  expense,  execute  and  deliver  to  the 
said  party  of  the  second  part,  or  to  his  assigns,  a  good  and 
sufficient  conveyance  of  said  described  lands  free  and  clear  from 
all  liens  and  encumbrances,  except  such  as  may  have  accrued 
thereon  subsequent  to  the  date  hereof  by  or  through  the  acts 
or  negligence  of  said  party  of  the  second  part  or  his  assigns. 

It  is  mutually  agreed  between  said  parties  that  the  said 
party  of  the  second  part  shall  have  possession  of  said  premises 
on  and  after  this  date  while  he  shall  not  be  in  default  on  his 
part  in  carrying  out  the  terms  hereof,  taking  and  holding 
such  possession  hereunder,  and  shall  keep  the  same  in  as  good 
condition  as  they  are  at  the  date  hereof  until  the  said  sum 
shall  be  paid  as  aforesaid ;  and  if  said  party  of  the  second  part 
shall  fail  to  perform  this  contract,  or  any  part,  shall  imme- 
diately after  such  failure,  have  a  right  to  declare  the  same 


76  THE  LAW  OF  LAND  CONTRACTS  [§32 

void  and  retain  whatever  may  have  been  paid  hereon,  and  all 
improvements  that  may  have  been  made  on  said  premises,  and 
may  consider  and  treat  the  party  of  the  second  part  as  a  tenant 
holding  over  without  permission,  and  may  take  immediate  pos- 
session of  the  premises  and  remove  the  party  of  the  second  part 
therefrom. 

It  is  further  agreed  by  and  between  the  parties  hereto  that 
this  contract  or  any  right  or  interest  therein  or  thereunder 
shall  not  be  transferred  or  assigned  by  said  party  of  the  second 
part  or  by  any  person  or  persons  claiming  by,  through,  or  un- 
der him  without  the  consent  of  the  party  of  the  first  part 
hereto  endorsed  in  writing  hereon. 

And  it  is  agreed  that  the  stipulations  aforesaid  are  to  apply 
to  and  bind  the  heirs,  executors,  administrators  and  assigns  of 
the  respective  parties. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 


Signed,  sealed  and  delivered  in  presence  of 


§  33.  Wayne  County  Abstract  Company's  Form. — Article  of 

agreement,  made  this day  of in  the  year  of 

our  Lord  one  thousand  nine  hundred  and  ,  between 

of  the  City  of  Detroit,  in  the  County  of  Wayne  and 

State  of  Michigan,  party  of  the  first  part,  and  ,  of 

the  same  place,  party  of  the  second  part  in  mannner  following : 
The  said  party  of  the  first  part,  in  consideration  of  the  sum 

of dollars  to  be  to  him  duly  paid,  hereby  agrees  to 

sell  unto  the  party  of  the  second  part  all  that  certain  piece  or 

parcel  of  land  lying  and  being  situate  in  the in  the 

County  of and  State  of ,  and  more  par- 
ticularly known  and  described  as  for  the  sum  of 

dollars  which  the  said  party  of  the  second  part 

hereby  agrees  to  pay  the  party  of  the  first  part  as  follows: 

dollars  at  the  date  hereof,  and  the  remaining 

dollars  with  interest  from on  all  sums 


§33]  FORMS    OF    PRELIMINARY    CONTRACTS  77 

at  any  time  unpaid  hereon  at  the  rate  of  six  per  cent,  per  annum 
till  due,  and  thereafter  at  the  rate  of  seven  per  cent,  per  annum 

till  paid,  payable herefrom.     Said  party  of  the 

second  part  as  part  of  the  purchase  price  also  agrees  to  pay 
all  taxes  and  assessments,  extraordinary  as  well  as  ordinary, 
that  shall  be  taxed  or  assessed  on  said  premises  from  the  date 
hereof  until  said  sum  shall  be  fully  paid  as  aforesaid,  within 
twenty-five  days  after  the  same  shall  become  payable.  If  de- 
fault be  made  on  the  part  of  the  party  of  the  second  part  in 
making  such  payment  of  taxes  or  assessments,  said  party  of 
the  first  part  shall  have  the  right  to  pay  the  same  and  have 
the  payment  due  hereon  from  the  time  of  such  payment  with 
interest  at  seven  per  cent,  per  annum  till  paid. 

Said  party  of  the  first  part  agrees  that  before  or  upon  the 
completion  of  this  contract  he  will  furnish  to  said  second  party 
a  Burton  Guaranteed  Certificate  of  Title,  showing  a  marketable 
title  to  the  above  described  premises  in  said  first  party. 

And  it  is  also  agreed  by  and  between  the  parties  to  these 
presents  that  the  said  party  of  the  second  part  shall  and  will 
pay  the  expenses  of  keeping  the  buildings,  erected  and  to  be 
erected  upon  the  lands  above  contracted  for,  insured  against 
loss  and  damage  by  fire  (in  policies  to  be  held  by  the  party 
of  the  first  part,  with  loss  if  any  payable  to  vendor  as  interest 
may  appear) ,  by  insurers  in  manner  and  amount  approved  by 
the  said  party  of  the  first  part,  such  expense  to  be  chargeable 
hereon  if  paid  by  the  party  of  the  first  part,  with  interest 
thereon  at  the  rate  of  seven  per  cent,  per  annum.  And  that 
the  said  party  of  the  first  part,  on  receiving  the  aforementioned 
payment  in  full,  at  the  time  and  in  the  manner  above  men- 
tioned, and  all  sums  chargeable  in  his  favor  hereon,  and  upon 
the  surrender  of  the  duplicate  of  this  contract,  shall  at  his  own 
proper  cost  and  expense,  execute  and  deliver  to  the  said  party 
of  the  second  part,  or  to  his  assigns,  a  good  and  sufficient  con- 
veyance of  said  described  lands free  and  clear  from 

all  liens,  and  encumbrances, except  such  as  may 

have  accrued  thereon  subsequent  to  the  date  hereof  by  or 
through  the  acts  or  negligence  of  said  party  of  the  second  part 
or  his  assigns. 


78  THE  LAW  OF  LAND  CONTRACTS  [§33 

It  is  mutually  agreed  between  said  parties  that  the  said 
party  of  the  second  part  shall  have  possession  of  said  premises 
on  and  after  this  date  while  he  shall  not  be  in  default  on  his 
part  in  carrying  out  the  terms  hereof,  taking  and  holding  such 
possession  hereunder,  and  shall  keep  the  same  in  as  good  con- 
dition as  they  are  at  the  date  hereof,  until  the  said  sum  shall 
be  paid  as  aforesaid  and  if  said  party  of  the  second  part  shall 
fail  to  perform  this  contract,  or  any  part  of  the  same,  said 
party  of  the  first  part  shall,  immediately  after  such  failure, 
have  a  right  to  declare  the  same  void,  and  retain  whatever 
may  have  been  paid  hereon,  and  all  improvements  that  may 
have  been  made  on  said  premises  and  may  consider  and  treat 
the  party  of  the  second  part  as  his  tenant  holding  over  with- 
out permission,  and  may  take  immediate  possession  of  the 
premises,  and  remove  the  party  of  the  second  part  therefrom. 

It  is  further  agreed  by  and  between  the  parties  hereto  that 
this  contract  or  any  right  or  interest  therein  or  thereunder 
shall  not  be  transferred  or  assigned  by  said  party  of  the  second 
part  or  by  any  person  or  persons  claiming  by,  through,  or  under 
without  the  consent  of  the  party  of  the  first  part  hereto  en- 
dorsed in  writing  hereon. 

And  it  is  agreed  that  the  stipulations  aforesaid  are  to  apply 
to  and  bind  the  heirs,  executors,  administrators  and  assigns 
of  the  respective  parties. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

L.S. 

L.S. 

L.S. 

Sealed  and  delivered  in  presence  of 


§  34.     Union  Trust   Co.   Form. — This   contract,   made   this 

day  of in  the  year  one 

thousand  nine  hundred  and between 

of  the  City  of ,Wayne  County,  Michigan, 

party  of  the  first  part,  and  ,  party  of  the  second 

part: 


§  34]  FORMS    OF   PRELIMINARY    CONTRACTS  79 

Witnesseth :  That  party  of  the  first  part  in  consideration  of 
the  payments  to  be  made  and  the  agreements  to  be  pefrormed 
by  the  party  of  the  second  part,  as  hereinafter  set  forth,  agrees 
to  sell  and  convey  to  the  said  party  of  the  second  part,  the  fol- 
lowing described  land,  situated  in  the of , 

Wayne  County,  Michigan,  to-wit:  

(here  insert  description  of  property) .    For  the  sum  of 

dollars,  which  the  said  party  of  the  second  part  agrees  to  pay 
to  the  said  party  of  the  first  part  as  follows  (here  designate 
payments)   including  (or  with)   interest  on  all  sums  at  any 

time  unpaid  hereon  at  the  rate  of per  cent,  per 

annum,  till  due  and  thereafter  at  the  rate  of  seven  per  cent. 

per  annum  till  paid,  payable  until  said  principal 

sum  is  fully  paid. 

It  is  a  condition  of  this  agreement  that  the  party  of  the 
second  part,  his  heirs  and  assigns,  shall  use  the  premises 
herein  described  for  residence  purposes  only  

Said  party  of  the  second  part  further  agrees  to  enter  said 
premises  for  taxation  in  his  own  name  and  to  pay  within  40 
days  after  the  same  shall  become  payable  all  taxes  and  assess- 
ments, extraordinary  as  well  as  ordinary,  that  may  be  levied 

thereon,  including  the  taxes  thereon  for  the  year 

19 

Said  party  of  the  second  part  further  agrees  that  he  shall 
and  will  keep  the  buildings  and  improvements  upon  and  to  be 
placed  upon  said  premises  insured  in  a  responsible  insurance 
company,  and  to  an  amount  to  be  approved  by  the  party  of  the 
first  part,  for  the  benefit  of  the  party  of  the  first  part,  until 
the  purchase  money  is  fully  paid ;  and  that  said  party  of  the 
second  part  shall  and  will  keep  the  buildings  and  all  other 
improvements  upon  said  premises  in  good  repair. 

In  case  the  party  of  the  second  part  shall  fail  to  pay  all 
taxes  and  assessments  or  to  insure  the  premises  as  herein- 
before provided  the  party  of  the  first  part  may  pay  and  dis- 
charge said  taxes  and  assessments  and  effect  such  insurance 
and  the  amounts  paid  therefor  by  the  party  of  the  first  part 
shall  be  deemed  a  part  of  the  principal  sum  hereof,  and  become 


gO  THE  LAW  OF  LAND  CONTRACTS  [§  34 

payable  forthwith,  with  interest  at  the  rate  of  seven  per  cent, 
per  annum,  payable  as  aforesaid,  until  paid. 

It  is  agreed,  by  the  parties  hereto,  that  the  said  party  of  the 
first  part,  on  receiving  payment  in  full  of  said  principal  and 
interest  and  of  all  other  sums  chargeable  in  his  favor  hereon, 
and  the  performance  of  all  the  agreements  of  the  party  of  the 
second  part  herein  contained,  in  the  manner  and  at  the  time 
above  limited  therefor,  and  upon  the  surrender  of  this  con- 
tract shall  and  will  at  his  own  proper  cost  and  expense  furnish 
a  Union  Trust  Company  Abstract,  Guaranty  or  Certificate  of 
Title  and  execute  and  deliver  to  said  party  of  the  second  part, 
a  good  and  sufficient  Warranty  Deed  of  said  above  described 
premises,  free  and  clear  of  and  from  all  liens  and  encumbrances, 
except  such  as  may  have  accrued  on  said  land  or  the  buildings 
thereon  subsequent  to  the  date  hereof,  by  or  through  the  acts 
or  negligence  of  any  party  or  parties  other  than  the  party 
of  the  first  part  hereto  and  which  deed  shall  contain  the  same 
building  restrictions  contained  in  this  contract. 

It  is  further  agreed,  that  the  said  party  of  the  second  part 
shall  have  possession  of  said  land  upon  the  execution  of  this 
contract,  and  shall  be  entitled  to  retain  possession  thereof  so 
long  as  there  is  no  default  upon  his  part  in  carrying  out  the 
terms  of  this  contract. 

It  is  further  agreed,  by  the  parties  hereto,  that  time  shall 
be  of  the  essence  of  this  contract  and  that  if  the  said  party  of 
the  second  part  shall  fail  to  make  any  of  the  payments  or  per- 
form any  of  the  conditions  above  set  forth,  in  the  manner  and 
at  the  time  above  limited  therefor,  the  party  of  the  first  part 
shall,  immediately  after  such  failure,  have  the  right  to  declare 
this  contract  void,  and  to  retain  whatever  may  have  been  paid 
hereon,  and  the  premises,  together  with  the  buildings  and  im- 
provements thereon  as  stipulated  damages,  and  may  consider 
and  treat  the  party  of  the  second  part  as  his  tenant  holding 
over  without  permission,  and  may,  without  notice,  written  or 
otherwise,  take  immediate  possession  of  the  premises  and  re- 
move the  party  of  the  second  part  therefrom. 

It  is  further  agreed,  by  the  parties  hereto,  that  the  said  party 
of  the  second  part  shall  not  assign  this  contract  without  the 
consent  of  the  party  of  the  first  part  being  first  endorsed  in 


§35] 


FORMS    OF    PRELIMINARY    CONTRACTS  81 


writing  hereon  and  on  the  duplicate  copy  hereof  held  by  the 
party  of  the  first  part. 

The  covenants,  conditions  and  agreements  herein  contained 
shall  be  for  the  benefit  of  and  binding  upon  the  several  parties 
hereto,  and  their  respective  heirs,  legal  representatives,  suc- 
cessors and  assigns. 

In  witness  whereof,  the  parties  hereto  have  executed  this 
agreement  in  duplicate  the  day  and  year  first  above  written. 

L.S. 

L.S. 

L.S. 

In  presence  of 


State  of  Michigan,  I 

County  of .) 

On  this day  of in  the  year  one  thou- 
sand nine  hundred  and ,  before  me,  a  notary  public 

in  and  for  said  county,  personally  appeared  (here  insert  name) 
to  me  known  to  be  the  same  person  described  in  and  who  exe- 
cuted the  within  instrument  as  vendor ,  who  acknowl- 
edged the  same  to  be  his  free  act  and  deed. 


Notary  Public,  Wayne  County, 
Michigan 

My  commission  expires • 

§  35.  Detroit  Land  Contract  Form.— This  contract  made  this 

day  of  ,  in  the  year  one  thousand  nine 

hundred  and ,  between  ,  of  the  City  of 

Detroit,  Wayne  County,  Michigan,  party  of  the  first  part,  and 
,  party  of  the  second  part: 

Witnesseth :   Party  of  the  first  part,  in  consideration  of  the 

payment  of ,  heretofore  made  to  first  party,  receipt 

whereof  is  confessed  and  acknowledged,  and  the  payments  to 
be  made,  and  agreements  to  be  performed  by  the  party  of  the 
second  part,  as  hereinafter  set  forth,  agrees  to  sell  and  convey 
to  the  party  of  the  second  part,  the  following  described  land, 


g2  THE  LAW  OF  LAND  CONTRACTS  [§35 

situated  in  the of County,  of  Michigan, 

to  wit:  


Party  of  the  second  part  agrees  to  pay  for  said  premises 

in  addition  to  the  sum  of dollars  heretofore  paid, 

the  sum  of dollars  in  installments  as  follows: 

dollars  or  more  on  the day  of 

and  a  like  sum  or  more  on  the day  of  every 

month  thereafter,  with  interest  at  the  rate  of  six  per 

cent,  per  annum  on  all  principal  sums  at  any  time  unpaid 
hereon,  until  due,  payable at  the  time  of  the  pay- 
ments of  said  installments,  and  thereafter  at  the  rate  of  seven 
per  cent,  per  annum  until  paid,  until  the  entire  principal  sum 
of dollars  shall  have  been  paid. 

Party  of  the  second  part  further  agrees  to  enter  for  taxa- 
tion in  his  own  name,  and  pay  within  forty  (40)  days  after  the 
same  shall  become  payable,  all  taxes,  assessments,  extraordi- 
nary as  well  as  ordinary  that  may  be  levied  thereon,  including 

the taxes  for  the  year  19 ,  also  in  case  party  of 

the  first  part  is  obliged  to  bring  any  action  for  the  enforcement 
of  this  contract,  party  of  the  second  part  will  pay  the  specific 
motrgage  tax  of  $5.00  per  thousand  dollars  of  the  amount  se- 
cured, and  all  costs  of  such  action,  including  a  reasonable  attor- 
ney fee  for  serving  notice  of  termination  and  representation  of 
first  party  in  court,  not  to  exceed  $10.00.  All  such  taxes, 
assessments,  costs  and  expenses  shall,  if  not  paid  by  second 
party,  upon  demand  be  added  to  the  balance  of  the  principal 

sum  due  hereunder  and  shall  bear  interest  thereafter  at 

per  cent,  per  annum. 

Party  of  the  second  part  will  keep  all  buildings  and  improve- 
ments upon  and  to  be  placed  upon  said  premises  insured  in  a 
responsible  insurance  company,  which  party  of  the  first  part 
shall  have  the  option  of  selecting,  if  he  so  desires,  in  an  amount 
to  be  approved  by  first  party  for  the  benefit  of  first  party  until 
the  purchase  money  is  fully  paid ;  and  the  said  party  of  second 
part  shall  and  will  keep  the  buildings  and  all  other  improve- 
ments upon  said  premises  in  good  repair.  Should  party  of  the 
second  part  fail  to  keep  said  buildings  and  improvements  in- 


§35] 


FORMS    OF    PRELIMINARY    CONTRACTS  83 


sured,  or  to  make  necessary  repairs  to  prevent  damage  to  the 
buildings,  party  of  the  first  part  may  effect  such  insurance 
and  may  cause  said  repairs  to  be  made  and  the  expense  thereof 
shall  be  added  to  the  principal  sum  due  hereunder  and  bear 
interest  at  six  per  cent,  per  annum  until  paid. 

Party  of  the  second  part  accepts  this  contract  subject  to  all 
or  any  building  restrictions  shown  in  the  chain  of  title,  and 
agrees  to  conform  to  same,  and  when  the  premises  are  finally 
conveyed  to  him,  will  accept  a  deed  subject  to  such  restrictions. 

Party  of  the  first  part  shall  have  the  right  to  place  a  mort- 
gage upon  said  premises  for  any  part  of  the  unpaid  balance, 
and  party  of  the  second  part  upon  paying  this  contract  down 
to  said  mortgage  will  accept  a  deed  subject  to  said  mortgage 
and  will  assume  and  pay  same. 

Time  shall  be  of  the  essence  of  this  contract  and  if  second 
party  shall  fail  to  make  any  of  the  payments  or  perform  any  of 
the  conditions  above  set  forth,  in  the  manner,  and  at  the  time 
above  limited  therefor,  party  of  the  first  part  shall  imme- 
diately after  such  failure  have  the  right  to  declare  this  contract 
terminated  and  may  thereupon  retain  whatever  may  have  been 
paid  thereon  and  the  premises,  together  with  all  buildings  and 
improvements,  as  stipulated  damages  for  the  breach  of  this 
contract,  and  rent  for  the  use  of  said  premises.  In  such  event 
the  premises  shall  be  surrendered  to  first  party  and  the  said 
first  party  shall  have  the  right  to  enter  and  repossess  same, 
and  second  party  shall  be  deemed  and  treated  as  a  tenant,  or 
tenants  holding  over  without  permission.  Any  notice  of  such 
termination  may  be  given  to  second  party  by  mailing  same  to 
his  last  known  address,  or  by  delivery  to  the  premises.  In 
addition  to  the  foregoing  remedy,  but  not  in  limitation  thereof, 
first  party  shall  in  case  of  default  of  second  party  have  the 
right  to  declare  the  entire  balance  due  upon  this  contract  and 
proceed  to  immediate  collection  hereof  either  by  suit  at  law  or 
in  equity. 

Upon  the  execution  of  this  contract,  and  so  long  as  party 
of  the  second  part  shall  not  have  defaulted  thereunder,  party 
of  the  second  part  shall  have  possession  of  said  premises,  and 
upon  payment  to  first  party  of  the  sums  chargeable  hereon. 


g4  THE  LAW  OF  LAND  CONTRACTS  [§  35 

and  the  performance  of  all  agreements  herein,  in  the  manner 
and  at  the  times  above  limited,  party  of  the  first  part  upon 
the  surrender  of  this  contract  will  execute  and  deliver  to  said 
party  of  the  second  part  a  good  and  sufficient  warranty  deed 
of  said  premises,  warranting  same  against  all  liens  and  en- 
cumbrances, except  such  as  may  have  accrued  on  said  land 
or  buildings  thereon  subsequent  to  the  date  hereof,  by  or 
through  the  acts  or  negligence  of  any  party  or  parties  other 
than  the  party  of  the  first  part  hereto  and  except  any  and  all 
restrictions  heretofore  imposed  upon  or  against  the  use  of  said 
premises,  and  will  also  furnish  an  abstract  of  title  showing 
marketable  title  in  first  party  or  parties. 

Party  of  the  second  part  shall  not  assign  this  contract  with- 
out the  consent  of  party  of  the  first  part  being  first  endorsed  in 
writing  hereon,  and  no  payments  received  by  first  party  upon 
this  contract  after  such  assignment  shall  be  deemed  or  con- 
sidered an  implied  consent  to  such  assignment. 

The  covenants,  conditions  and  agreements  herein  contained 
shall  be  for  the  benefit  of  and  binding  upon  the  several  parties 
hereto,  and  their  respective  heirs,  legal  representatives,  suc- 
cessors and  assigns. 

In  witness  whereof,  the  parties  hereto  have  executed  this 
agreement  in  duplicate  the  day  and  year  first  above  written. 

(L.  S.) 

(L.S.) 

(L.  S.) 

(L.S.) 

In  presence  of 


County  of  Wayne,  ) 
State  of  Michigan,  \ 


On  this day  of ,  in  the  year  one  thou- 
sand nine  hundred  and ,  before  me  a  notary  public 

in  and  for  said  county,  personally  appeared ,  to 

me  known  to  be  the  same  person  described  in  and  who  exe- 


§36] 


FORMS    OF    PRELIMINARY    CONTRACTS  85 


cuted  the  within  instrument  as  vendor ,  who 

acknowledged  the  same  to  be free  act  and  deed. 


Notary  Public,  Wayne  County, 
Michigan. 
My  commission  expires  

§36.  Form  of  Land  Contract  with  Special  Tax  Clause. — 

The  following  is  a  form  of  land  contract  with  a  special  tax 
clause  whereby  the  vendee  obligates  himself  to  pay  not  only 
the  taxes  assessed  against  the  property  but  all  taxes  which 
may  be  assessed  against  the  contract  or  upon  the  interest  of 
the  vendor  in  such  contract. 

"This  contract,  made  this  (here  insert  date)  between  (here 
insert  name  of  party  of  the  first  part)  party  of  the  first  part 
and  (here  insert  name  of  party  of  the  second  part)  party  of 
the  second  part. 

Witnesseth,  that  the  said  party  of  the  first  part,  in  con- 
sideration of  the  sum  of dollars  to  be  to  him  duly 

paid  as  hereinafter  specified,  hereby  agrees  to  sell  and  convey 
to  the  said  party  of  the  second  part  all  the  following  described 
land,  situated  in   (here  insert  place),  to-wit:    (here  describe 

property),  for  the  sum  of  dollars  which  the  said 

party  of  the  second  part  hereby  agrees  to  pay  to  the  said  party 
of  the  first  part  as  follows :  (here  designate  how  payments  are 
to  be  made)   with  interest  on  all  sums  at  any  time  unpaid 

hereon  at  the  rate  of per  cent,  per  annum,  payable 

annually. 

It  is  agreed  by  the  parties  hereto,  that  the  said  party  of  the 
second  part  shall,  during  the  life  of  this  contract,  pay  and 
discharge  within  the  time  prescribed  by  law,  all  such  taxes  and 
assessments  (extraordinary  as  well  as  ordinary)  as  shall  by 
any  lawful  authority  be  imposed  upon  the  premises  above  de- 
scribed, and,  particularly,  all  taxes  which  shall  be  assessed 
upon  "this  contract,  or  upon  the  contract  interest  of  said  party 
of  the  first  part  in  and  to  said  premises,  by  virtue  of  this  con- 
tract, including  the  taxes  for  the  year and  that  the 

payment  by  said  party  of  the  second  part  of  such  taxes  on  this 
contract,  or  the  contract  interest  of  said  party  of  the  first  part, 


gg  THE  LAW  OF  LAND  CONTRACTS  [§36 

shall  not,  in  any  case,  be  considered  and  treated  as  a  payment 
on  either  the  interest  or  the  principal  of  this  contract. 

It  is  agreed  by  the  parties  hereto  that  in  default  of  the  pay- 
ment of  any  or  all  of  said  above  mentioned  taxes  and  assess- 
ments, by  said  party  of  the  second  part,  within  the  time  pre- 
scribed by  law,  it  shall  be  lawful  for  said  party  of  the  first 
part  to  pay  any  or  all  of  said  above-mentioned  taxes  and  assess- 
ments, and  the  moneys  thus  paid  by  said  party  of  the  first  part 
may  be  added  to  the  amount  due  on  this  contract,  payable 

forthwith  with  interest  at  the  rate  of per  cent,  per 

annum,  and  shall  be  treated  as  a  part  of  the  money  payable 
under  this  contract. 

It  is  agreed  by  the  parties  hereto,  that  said  party  of  the 
second  part  shall  have  possession  of  said  land,  under  this  con- 
tract on  the  (here  insert  date). 

It  is  also  agreed  by  the  parties  hereto  that  if  the  said  party 
of  the  second  part  shall  fail  to  perform  this  contract,  or  any 
part  of  the  same,  the  said  party  of  the  first  part  shall  imme- 
diately after  such  failure,  have  the  right  to  declare  this  con- 
tract void,  and  to  retain  whatever  may  have  been  paid  hereon, 
and  all  improvements  that  may  have  been  made  on  said  land 
as  stipulated  damages  for  non-performance  of  this  contract, 
and  may  consider  and  treat  said  party  of  the  second  part  as  his 
tenant  holding  over  without  permission,  and  may  take  imme- 
diate possession  of  said  land,  and  remove  said  party  of  the 
second  part  therefrom. 

And  it  is  agreed  that  the  stipulations  herein  contained  are 
to  apply  to  and  bind  the  heirs,  executors,  administrators  and 
assigns  of  the  respective  parties  hereto. 

In  witness  whereof,  the  parties  hereto  have  hereunto  set 
their  hands  and  seals,  the  day  and  year  first  above  written. 


Signed,  sealed  and  delivered  in  presence  of 


R  37]  FORMS    OF   PRELIMINARY    CONTRACTS  87 

State  of  Michigan,) 

County  of ,j 

On  this day  of A.  D.  19 ,  before 

me,  the  subscribed,  a  notary  public  in  and  for  said  county,  per- 
sonally appeared  (here  insert  the  name  of  the  vendor)  to  me 
known  to  be  the  person  named  in  and  who  executed  the  within 
instrument  as  vendor,  and  acknowledged  that  he  executed  the 
same  as  his  free  act  and  deed  for  the  intents  and  purposes 
therein  mentioned. 

Notary  Public, County, 

My  commission  expires 1C  lgan* 

§  37.  Contract  for  Sale  of  Farm  Land  on  Long  Time. — This 

contract,  made  this day  of A.  D.  19 , 

between of of  the  first  part,  and 

of of  the  second  part,  witnesseth: 

1.  The  said  party  of  the  first  part,  in  consideration  of  the 

sum  of dollars  to  be  paid  to  the  said  party  of  the  first 

part,  and  of  the  covenants  to  be  performed  by  the  said  party 
of  the  second  part,  as  hereinafter  expressed,  hereby  agrees 
to  sell  to  the  said  party  of  the  second  part,  all  that  certain  tract 

of  land  situated  in  the  township  of ,  County  of 

and  State  of ,  known  and  described  as  fol- 
lows :  etc.,  with  the  privileges  and  appurtenances  thereunto  be- 
longing. 

2.  The  said  party  of  the  second  part  in  consideration  of  the 
covenants  herein  contained  on  behalf  of  the  said  party  of  the 
first  part,  hereby  agrees  to  purchase  the  above  described 
land  and  to  pay  for  the  same  to  the  said  party  of  the  first 

part  or  his  legal  representatives  the  sum  of 

dollars  in  manner  following,  that  is  to  say, 

(state  the  terms  of  payment),  with  interest  to  be  computed 

from  the  date  of  these  presents  at  the  rate  of per 

cent,  per  annum,  on  the  whole  sum  that  shall  be  from  time  to 

time  unpaid,  and  to  be  paid  annually aforesaid  and 

also  that  he  will,  so  long  as  any  part  of  the  principal  or  interest 
of  the  said  consideration  money  remains  unpaid,  well  and  faith- 
fully in  due  season,  in  each  and  every  year,  pay  or  cause  to 
be  paid  all  taxes  and  assessments,  ordinary  and  extraordinary, 


£8  THE  LAW  OF  LAND  CONTRACTS  [§37 

that  may  for  any  purpose  whatever  be  levied  or  assessed  on 
said  premises  or  on  this  contract;  and  that  he  will  not  com- 
mit or  suffer  any  other  person  to  commit  any  waste  or  damage 
to  the  said  lands  or  the  appurtenances  except  for  firewood  or 
otherwise  for  his  own  use,  or  while  clearing  the  lands  for  culti- 
vation in  the  ordinary  manner. 

3.  The  said  party  of  the  first  part  further  covenants  and 
agrees  with  the  said  party  of  the  second  part  that  upon  the 
faithful  performance  by  the  said  party  of  the  second  part  of 
the  covenants  and  agreements  by  him  to  be  performed,  and 
upon  the  payment  of  the  several  sums  of  money  above  men- 
tioned, and  the  interest  thereon,  at  the  time  and  in  the  man- 
ner and  at  the  place  above  mentioned,  to  the  said  party  of 
the  first  part,  that  thereupon  the  said  party  of  the  first  part 
will  well  and  faithfully  execute  and  deliver  a  good  and  suffi- 
cient deed  or  deeds,  and  thereby  convey  to  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  a  good  and  unencumbered 
title  in  fee  simple  to  the  above  described  premises  with  their 
appurtenances. 

4.  It  is  further  mutually  covenanted  and  agreed  by  and 
between  the  parties  hereto,  that  the  said  party  of  the  second 
part  may  immediately  enter  on  the  said  land  and  remain 
thereon  and  cultivate  the  same  as  long  as  he  shall  fulfill  and 
perform  all  the  agreements  hereinbefore  mentioned,  on  his  part 
to  be  fulfilled  and  performed,  and  no  longer;  and  that  if  he 
shall,  at  any  time  hereafter  violate  or  neglect  to  fulfill  any  of 
said  agreements,  he  shall  forfeit  all  right  or  claim  under  this 
contract  and  be  liable  to  said  party  of  the  first  part  for  dam- 
ages, and  shall  also  be  liable  to  be  removed  from  the  said  land 
in  the  same  manner  as  is  provided  by  law  for  the  removal  of 
a  tenant  who  holds  over  after  the  expiration  of  the  time  speci- 
fied in  his  lease.  And  it  shall  be  lawful  for  the  said  party  of 
the  first  part,  at  any  time  after  the  violation  or  non-fulfillment 
of  any  of  the  said  agreements  on  the  part  of  the  said  party  of 
the  second  part,  to  sell  and  convey  the  land,  or  any  part  thereof, 
to  any  other  person  whomsoever;  and  the  said  party  of  the 
first  part  shall  not  be  liable  in  any  way,  or  to  any  person,  to 
refund  any  part  of  the  money  which  he  may  have  received 
on  this  contract,  or  for  any  damages  on  account  of  such  sale. 


§39] 


FORMS    OF   PRELIMINARY    CONTRACTS 


89 


And  it  is  hereby  expressly  understood  and  declared  that  time 
is  and  shall  be  deemed  and  taken  as  of  the  essence  of  this  con- 
tract, and  that  unless  the  same  shall  in  all  respects  be  complied 
with  by  the  said  party  of  the  second  part  at  the  respective 
times  and  in  the  manner  above  limited  and  declared,  that  the 
said  party  of  the  second  part  shall  lose  and  be  debarred  from 
all  rights,  remedies,  or  actions  either  in  law  or  equity,  upon 
or  under  this  contract. 

5.  It  is  hereby  agreed  that  this  contract  shall  be  binding 
on  the  respective  representatives  of  the  parties  hereto. 

In  witness  whereof,  the  parties  to  this  agreement  have  here- 
unto set  their  hands  and  seals  the  day  and  year  first  above 
written. 


Signed,  sealed  and  delivered  in  the  presence  of 


§  38.  Form  for  Recording  Payments  on  Land  Contracts. — 

Attached  to  land  contracts  are  usually  forms  for  the  regis- 
tration and  receipt  of  payments  made  by  the  vendee  thereon. 
Such  form,  where  the  printed  blank  is  used,  is  usually  printed 
on  the  back  of  the  contract  and  may  be  as  follows: 
Received  payment  of  the  within  contract  as  follows : 


Date 

Principal 
Payments 

Balance  of 
Principal 

Interest 
Payments 

Paying 
Interest  to 

Signature 

Payment 
Due   on 
Delivery 

§  39.  Assignment  of  Land  Contract,  Long  Form. — The  fol- 
lowing is  an  assignment  of  land  contract  attached  to  some  of 


90  THE  LAW  OF  LAND  CONTRACTS  [§39 

the  forms  in  general  use  among  the  legal  profession.  This 
form  is  more  extended  than  the  form  given  in  the  preceding 
section,  but  is  not  believed  to  be  any  more  effectual.  The  as- 
signment of  a  land  contract  need  not  be  acknowledged  by 
either  the  vendor  or  vendee  unless  it  is  intended  to  record  such 
assignment. 

In  consideration  of  (here  insert  amount  to  be  paid)  to  me 
in  hand,  paid  by  (here  insert  name  of  party  contract  is  to  be 
transferred  to)  and  by  and  with  the  consent  of  the  party  of 
the  first  part  in  and  to  the  contract  of  sale  hereto  annexed, 
the  party  of  the  second  part  in  the  within  contract,  does  hereby 
assign  and  transfer  the  annexed  contract  to  the  said  (here  in- 
sert name  of  party  contract  is  to  be  transferred  to)  his  heirs 
and  assigns. 

And  the  assignee  above  named  does  hereby  accept  the  above 
assignment,  and  in  consideration  of  the  assent  of  said  first 
party  in  and  to  said  contract  to  said  transfer,  does  hereby 
covenant  and  agree  to  assume  and  fulfill  all  the  obligations 
thereof  on  the  part  of  the  said  assignor  to  be  fulfilled. 

And,  said  first  party  in  and  to  said  contract  does  expressly 
consent  to  the  aforegoing  assignment. 

Dated  at ,  this day  of 


Signed,  sealed  and  delivered  in  presence  of 


State  of  Michigan,  | 
County  of ,  j 

On  this day  of ,  19 ,  before  me, 

a  notary  public  in  and  for  said  county,  personally  appeared 
(here  insert  name  of  first  party  to  assignment)  known  to  me 
to  be  the  person  who  executed  the  foregoing  assignment  of 
contract,  and  acknowledged  the  same  to  be  his  free  act  and 
deed. 

Notary  Public,  County, 

Michigan. 
My  commission  expires 


41] 


FORMS    OF    PRELIMINARY    CONTRACTS  91 


§  40.  Assignment  of  Land  Contract,  Short  Form  with  Con- 
sent of  Vendor. — The  following  is  a  form  of  assignment  of  land 
contract  in  common  use  in  Michigan  by  the  legal  profession, 
together  with  a  form  of  consent  by  the  vendee,  and  the  accept- 
ance and  agreement  by  the  assignee  of  the  vendee  to  carry  out 
the  terms  and  conditions  of  the  contract.  This  form  is  suffi- 
cient to  comply  with  all  the  statutory  provisions  relating  to 
land  contracts,  but  such  assignment  cannot  be  recorded  unless 
the  original  contract  has  been  acknowledged  by  the  vendor. 

Consent  by  Vendor. 

Detroit,  Michigan. 
I  (or  we)  hereby  consent  that  the  interest  of  (here  insert 
name  of  party  of  the  second  part)  in  the  within  contract  be 
assigned  to  (here  insert  name  of  party  to  whom  interest  is 
being  assigned  to)  subject  to  all  the  conditions  and  obligations 
therein  contained. 

L.S. 

Assignment  by  Vendee. 

In  consideration  of dollars,  to  me  in  hand  paid, 

I  do  hereby  sell,  assign  and  transfer  unto  (here  insert  name 
of  party  to  whom  interest  is  being  assigned)  all  my  right,  title 
and  interest  in  and  to  the  within  contract,  and  advantages  to 
be  derived  therefrom. 

L.S. 

Acceptance  of  Assignment  by  Assignee  as  Vendee. 

I,  assignee  above  named,  do  hereby  accept  the  above  assign- 
ment, and  do  hereby  covenant  and  agree  to  and  with  (here  in- 
sert name  of  party  of  first  part) ,  the  party  of  the  first  part  to 
the  within  contract,  in  consideration  of  his  (or  her)  consent 
above  given,  to  assume,  perform  and  carry  out  with  him  (or 
her)  all  the  conditions  and  obligations  therein  contained  on 
the  part  of  the  party  of  the  second  part  thereto  to  be  per- 
formed. 


§  41.  Contract  for  the  Sale  of  City  Lots,  Vendor  to  Advance 
Funds  for  Building. — This  contract  made  and  entered  into  this 


92  THE  LAW  OF  LAND  CONTRACTS  [§  41 

(here  insert  date),  by  and  between  (herein  insert  name  of 
vendor),  of  (here  insert  residence  of  vendor,  including  city, 
county  and  state),  hereinafter  referred  to  and  designated  as 
party  of  the  first  part  and  (here  insert  name  of  vendee),  of 
(herein  insert  residence  of  vendee,  city,  county  and  state)  here- 
inafter referred  to  and  designated  as  party  of  the  second  part, 
Witnesseth : 

1.  Party  of  the  first  part  agrees  to  sell  and  party  of  the 
second  part  agrees  to  purchase  for  the  sum  of dol- 
lars, all  that  certain  piece  or  parcel  of  land  situate,  lying  and 

being  in  the of county,  of 

more  particularly  described  as  follows :  (herein  insert  detailed 
legal  description) ;  in  fee  simple  and  possession  free  and  clear 
from  all  encumbrances. 

2.  Said  purchase  price  shall  be  paid  by  party  of  the  second 
part  to  the  party  of  the  first  part  in  the  following  manner  to- 

wit;  the  sum  of dollars  upon  the  execution  of  this 

contract,  receipt  hereof  is  hereby  acknowledged,  and  the  bal- 
ance of  such  purchase  price  on  installments  of dollars 

or  more  at  the  option  of  the  party  of  the  second  part,  all  pay- 
ments to  be  made  at Street,  in  the  City  of  Detroit. 

or  elsewhere  in  said  city  as  party  of  the  first  part  may  direct 
and  party  of  the  first  part  agrees  to  convey  to  party  of  the 
second  part  at  any  time  upon  demand  the  aforesaid  real  estate, 
provided  that  the  above  named  price  for  said  land  shall  have 
been  paid  in  full  by  party  of  the  second  part  to  party  of  the 
first  part  and  that  all  advances  made  by  party  of  the  first  part 
to  party  of  the  second  part  for  the  construction  of  the  house 
built  and  erected  upon  the  same.  It  is  farther  agreed  that 
party  of  the  second  part  shall  pay  to  party  of  the  first  part, 

interest  at  the  rate  of per  cent,  per  annum  on  said 

purchase  money  from  the day  of ,  and 

interest  at  the  same  rate  on  all  advances  made  by  party  of 
the  first  part  to  party  of  the  second  part  as  herein  contem- 
plated until  said  purchase  price  shall  have  been  completed. 

3.  The  party  of  the  second  part  shall  be  entitled  to  the  im- 
mediate possession  of  the  said  piece  or  parcel  of  land,  and  shall 
bear  and  pay  all  taxes,  rates  and  assessments  in  respect  to 


§41]  FORMS    OF   PRELIMINARY    CONTRACTS  93 

the  same  as  if  the  said  piece  or  parcel  of  land  had  been  con- 
veyed to  him. 

4.  The  party  of  the  second  part  shall  not  dig  for  or  remove 
from  said  piece  or  parcel  of  land  or  any  part  thereof  any  gravel, 
sand,  clay  or  other  substance,  beyond  the  necessary  excavations 
for  the  buildings  to  be  erected  thereon,  without  previous  con- 
sent in  writing  of  the  party  of  the  first  part. 

5.  The  party  of  the  second  part  shall,  within  one  calendar 
month  after  the  execution  of  these  presents,  commence,  and 
without  intermission  and  with  reasonable  expedition,  proceed 

with  the  erection  of on  the  said  piece  of  land,  and 

shall  completely  finish,  fit  for  habitation,  the  said , 

on  or  before  the  day  of 

6.  Such  houses  shall  front  upon  street  afore- 
said, and  shall  be  erected  in  a  proper,  workmanlike  manner, 
in  accordance  with  plans  and  specifications  to  be  first  approved 
of  in  writing  by  the  party  of  the  first  part's  architect,  and 
shall  be  built  of  good  materials,  and  the  said  houses  shall  be 
set  back feet  from  said street. 

7.  If  the  party  of  the  second  part  shall  in  all  respects  ob- 
serve and  perform  his  part  of  the  contract,  party  of  the  first 
part  will  advance  to  him  for  the  purpose  of  assisting  him  in 

the  erection  of  said  house  the  sum  of  dollars  in 

respect  to  said  house  in  the  following  manner,  to-wit: 

but  it  is  hereby  agreed  in  re- 
spect to  such  advances  that  party  of  the  first  part  shall  not 
be  required  to  make  any  advance  towards  the  construction  of 
said  house  unless  such  building  exclusive  of  the  value  of  the 
land  shall  be  equal  in  value  to  one-third  more  than  the  aggre- 
gate of  the  sums  advanced.  At  any  particular  time  an  ad- 
vance may  be  required  application  for  each  advance  shall  be 
made  not  less  than days  before  the  same  is  payable. 

It  is  farther  agreed  and  understood  that  party  of  the  first 
part  shall  be  furnished  with  true  and  correct  copies  of  all 
bills  for  material  and  all  expenditures  made  on  behalf  of  labor, 
weekly  from  time  to  time  as  such  building  may  progress  and 
failure  to  furnish  such  bills  and  such  true  and  correct  state- 


94  THE  LAW  OF  LAND  CONTRACTS  [§  41 

ments  of  labor  expended  on  said  building  shall  justify  party 
of  the  first  part  to  discontinue  such  advances. 

8.  It  is  farther  agreed  between  the  parties  that  sworn  state- 
ments shall  be  furnished  by  party  of  the  second  part  before 
requiring  any  additional  advances  on  said  building  after  the 
first,  giving  the  names  and  addresses  of  all  persons  who  have 
worked  on  said  building  and  the  amount  of  wages  due  and 
earned  by  such  persons  and  the  amount  of  wages,  if  any,  unpaid 
and  shall  also  in  such  sworn  statement  give  the  names  of  per- 
sons, firms  or  corporations  from  whom  material  has  been  pur- 
chased which  has  gone  into  the  construction  or  erection  of  said 
building. 

9.  The  party  of  the  second  part  shall,  at  his  own  expense 
insure  the  buildings  to  be  erected  on  said  land,  and  any  build- 
ing materials  for  the  time  being  thereon,  for  the  benefit  and 
security  of  the  party  of  the  first  part,  in  a  sum  or  sums  equal 
in  amount  to  any  advances  made  pursuant  to  this  agreement. 

10.  The  party  of  the  second  part  shall  at  his  own  expense, 
insure  land  and  all  the  buildings  for  the  time  being  erected  or 
in  the  course  of  erection  thereon,  and  upon  all  the  building 
materials  and  other  things  which  shall  for  the  time  being  be 
brought  upon  the  said  land,  or  the  streets  and  passageways 
adjoining  the  same,  as  well  as  for  the  said  purchase  money 
and  the  interest  thereon  as  also  for  such  sums  of  money  as  the 
party  of  the  first  part  may  have  advanced  or  paid  as  herein 
provided. 

11.  When  and  as  soon  as  the  party  of  the  second  part  shall 
have  paid  to  the  party  of  the  first  part  the  purchase  money 
of  said  land  or  any  house-lot  of  the  same,  together  with  all 
sums  of  money  advanced  or  paid  by  the  party  of  the  first  part 
in  respect  to  any  building  or  buildings  thereon,  pursuant  to 
this  agreement,  the  party  of  the  first  part  shall  execute  a 
proper  conveyance  of  said  land  or  house-lot,  and  such  deed  shall 
contain  covenants  on  the  part  of  the  purchaser,  his  heirs, 
executors,  administrators,  and  assigns,  with  the  party  of  the 
first  part,  his  heirs  and  assigns,  that  no  buildings  which  shall 
be  erected  upon  said  piece  of  land  shall  be  used  for  the  pur- 
pose of  carrying  on  any  trade,  business  or  manufacture,  or  for 


§  41]  FORMS    OF    PRELIMINARY    CONTRACTS  95 

any  purpose  which  may  be  or  become  a  nuisance  or  annoyance 

to  the  neighborhood,  and  that  an  area  of  the  depth  of 

feet  from street  aforesaid  shall  at  all  times  here- 
after be  left  open  and  unbuilt  upon  except  that  bay  windows 

may  project  over  the  same,  not  more  than feet  from 

the  house  to  which  they  belong;  and  also  that  the  purchaser, 
his  heirs  or  assigns,  will  from  time  to  time  pay  one-half  of 
the  expense  of  keeping  in  repair  so  much  of  the  said  passage- 
way as  is  co-extensive  with  the  said  piece  or  lot  of  land. 

12.  The  party  of  the  second  part  shall  be  entitled  to  have 
said  piece  of  land  conveyed  to  him  by  several  conveyances,  not 
exceeding  the  number  of  house-lots  into  which  said  land  may 
be  divided,  upon  payment  to  the  party  of  the  first  part  on 

account  of  said  purchase  money  of  the  sum  of for 

each  front  foot  of  land  to  be  comprised  in  such  conveyance, 
with  interest  thereon  as  aforesaid,  and  the  advances  made  by 
the  party  of  the  first  part  in  respect  of  the  buildings  erected 
on  the  land  to  be  comprised  in  such  conveyance,  with  interest 
as  aforesaid,  and  all  sums  paid  for  insurance  and  the  interest 
due  in  respect  thereof,  provided  that  the  party  of  the  first  part 
shall  not  at  any  time  require  a  conveyance  of  part  of  the  said 
land  under  this  clause,  unless  at  the  time  of  such  conveyance  he 

shall  have  proceeded  with  the  erection  of  at  least 

on  the  land  remaining  and  shall  have  complied  in  all  respects 
with  the  provisions  herein  contained. 

13.  If  default  shall  be  made  by  the  party  of  the  second  part 
in  the  observance  and  performance  of  his  part  of  this  agree- 
ment in  any  particular,  and  time  shall  be  deemed  to  be  of  the 
essence  of  the  contract,  or  if  the  purchaser  shall  become 
bankrupt  or  make  any  composition  with,  or  any  assignment 
for,  the  benefit  of  his  creditors,  then  and  in  such  case  it  shall 
be  lawful  for  the  party  of  the  first  part  to  re-enter  upon  such 
land  or  any  part  thereof  not  previously  conveyed  to  the  party 
of  the  second  part,  and  by  notice  in  writing  to  be  delivered 
to  the  party  of  the  second  part  or  left  for  him  at  his  usual 
and  last  known  place  of  abode,  absolutely  to  determine  this 
agreement  so  far  as  relates  to  such  portion  of  said  land  as 
may  not  previously  have  been  conveyed  to  the  purchaser. 


96  THE  LAW  OF  LAND  CONTRACTS  [§  41 

14.  If  this  present  agreement  shall  be  determined  by  the 
vendor  under  the  preceding  clause  so  much  of  the  said  land  as 
shall  not  have  been  conveyed  to  the  purchaser  pursuant  to  this 
agreement,  together  with  the  buildings  thereon,  and  all  build- 
ing materials  which  under  the  previous  clauses  of  this  agree- 
ment are  provided  to  be  attached  and  belong  to  the  said  land 
or  the  buildings  thereon,  shall  immediately  after  the  delivery 
of  the  notice  to  determine  this  agreement,  be  and  remain  the 
absolute  property  of  the  party  of  the  first  part  freed  and  dis- 
charged from  all  claims  and  demands  of  the  party  of  the 
second  part  in  respect  thereof  or  otherwise  on  account  of  this 
agreement,  and  the  party  of  the  second  part  shall  thenceforth 
be  freed  and  discharged  from  all  obligations  created  by  this 
agreement,  and  which  then  remain  unperformed. 

In  Witness  whereof,  etc. 

§  42.  Power  of  Attorney  to  Lease  or  Sell  Land. — Know  All 
Men  by  These  Presents,  That  I,  (herein  insert  name  of  grantor) 
of  (herein  insert  name  of  City)  County  of  (herein  insert  name 
of  County)  State  of  Michigan,  do  by  these  presents  constitute 
and  appoint  (herein  insert  name  of  person  to  whom  Power  of 
Attorney  is  given)  of  (herein  insert  name  of  City)  County  of 
(herein  insert  name  of  County)  State  of  Michigan,  my  true 
and  lawful  attorney  for  me  and  in  my  name,  place  and  stead  to 
lease  the  following  described  real  estate  to-wit;  (herein  insert 
description  of  property)  to  such  person  or  persons,  and  for 
such  term  or  number  of  years,  or  for  life  or  lives,  and  at  and 
under  such  yearly  and  other  rents  as  he  shall  think  fit  and 
proper  or  to  otherwise  sell  and  dispose  of  said  real  estate  or 
any  part  thereof  absolutely  in  fee  simple  for  such  price  or  sum 
of  money  and  to  such  person  or  persons  as  he  shall  think  fit 
and  convenient  and  also  for  me  in  my  name  and  as  my  act  and 
deed  to  sign,  seal  execute  and  deliver  such  deeds  and  con- 
veyances for  the  leasing  of  or  for  the  absolute  sale  and  disposal 
thereof  of  said  real  estate  or  any  part  thereof,  with  such 
clauses,  covenants  and  agreements  to  be  therein  contained  as 
my  said  attorney  shall  think  fit  and  expedient ;  Hereby  ratify- 
ing and  confirming  all  such  leases,  deeds,  conveyances,  bar- 


§  42]  FORMS    OF   PRELIMINARY    CONTRACTS  97 

gains  and  sales  which  shall  at  any  time  hereafter  be  made  by 
my  said  attorney  touching  and  concerning  the  aforesaid 
premises. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal 
this day  of A.  D.  19 


Signed,  sealed  and  delivered 
in  the  presence  of, 


State  of  Michigan,  | 

County  of f 

On  this day  of A.D before  me, 

the  undersigned,  a  notary  public  in  and  for  the  said  county, 

personally  appeared (here 

insert  the  name  of  grantor  of  power  of  attorney)  to  me  well 
known,  who  acknowledged  the  execution  of  the  foregoing  power 
of  attorney  as  his  free  act  and  deed  for  the  intents  and  pur- 
poses herein  mentioned. 

Notary  Public. 

County,  Michigan. 

My  commission  expires 


CHAPTER  IV 

LAND  CONTRACTS,  NATURE  OF  ESTATE  CREATED,  EXECUTION, 
PARTIES,  CONSTRUCTION,  MISCELLANEOUS 

TOPICS 

§  43.  Nature  of  Estate  Created  by  Land  Contract. 

§  43A.  Wife  Need  Not  Join  With  Vendee  in  Assignment  of  Contract — 

Exceptions. 
§  44.  Nature  of  Estate  Where  Vendees  are  Husband  and  Wife. 
§  45.  Respective   Shares  When   Vendees   are   Husband   and  Wife  Joined 

With  Others. 
§  45A.  Effect  of  Mutual  Releases  of  Property. 
§  46.  Land  Contracts,  Capacity  of  Parties. 
§  47.  Land  Contracts,  Execution,  Statutory  Requirements. 
§  48.  Consideration  Need  Not  Be  Stated  in  Contract. 
§  49.  Land  Contracts  Acknowledgment  and  Registration. 
§  50.  Form  of  Acknowledgment,  Statutory  Provision. 
§  51.  Authentication    of   Written   Instruments    Executed    Outside    of   the 

State. 
§  52.  Acknowledgments  in  Other  States  and  Territories. 
§  53.  Acknowledgment  of  Contracts  Executed  in  Foreign  Countries. 
§  54.  Land  Contracts  Defectively  Executed,  Curative  Statutes. 
§  55.  Land  Contracts  as  Evidence  (Certified  Copy). 
§  56.  Discharging  Land  Contracts  of  Record. 
§  57.  Registration  of  Land  Contracts  Where  Land  Affected  Lies  in  Two 

or  More  Counties*. 
§  58.  Possession  by  Vendee  as  Constructive  Notice  of  Contract. 
§  59.  The  Specific  Tax  on  Land  Contracts. 
§  60.  Basis  of  Computing  Specific  Tax  on  Land  Contracts. 
§  61.  Sale  of  Expectant  Interests. 

§  62.  Vendor's  Equitable  Lien  for  Unpaid  Purchase  Price. 
§  62A.  Mechanics'  Liens  on  Interest  of  Vendee. 

§  43.  Nature  of  Estate  Created  by  Land  Contract. — A  con- 
tract for  the  sale  of  land,  where  the  vendee  is  given  possession 
of  the  premises,  conveys  to  the  vendee  the  equitable  title  there- 
to.1   While  at  law  the  title  remains  in  the  vendor  as  security 

1.  Fitzhugh  v.  Maxwell,  34  Mich.      Bank  v.  Proaty,  158  Mich  656.    Har- 
138.     Gates  on  Real  Property,  Sec.      ris  v.  Brown,  172  Mich.  164. 
614A.       Midland     County     Savings 


§43] 


LAND  CONTRACTS 


99 


for  the  performance  of  the  obligation  of  the  contract,  yet  in 
equity  the  contract  conveys  it  to  the  vendee.  The  equitable 
rights  of  the  vendee  are  alienable,  descendable,  and  devisable 
in  like  manner  as  real  estate  held  by  legal  title.2 

At  the  death  of  the  vendee,  the  interest  of  the  estate  in  the 
contract  passes  to  the  heirs  as  real  property,  and  not  the 
administrators. 

The  interest  of  the  vendor  is  held  to  be  personal  property  8 
and  at  the  death  of  the  vendor,  passes  to  the  administrator  of 
the  vendor  rather  than  to  the  heirs.  Notwithstanding  several 
decisions  cited  below  holding  that  the  interest  of  the  vendor  is 
personal  property,  and  descends  to  the  administrator,  the  Su- 
preme Court  has  decided  in  an  earlier  case  4  that  the  widow  is 
entitled  to  dower  in  the  interest  of  her  husband  as  a  vendor 
in  a  land  contract.  A  careful  examination  of  the  case  just 
referred  to  will  disclose  that  it  is  not  inconsistent  with  the 
subsequent  decisions  cited  in  the  note. 

A  clear  exposition  of  the  nature  of  the  estate  created  by  land 
contract  can  be  found  in  the  note  containing  an  excerpt  from 
a  recent  English  case.6 


2.  Gates  on  Real  Property,  614A. 
Lewis  v.  Hawkins,  90  U.  S.  (23 
Wall)  119,  23  L.  Ed.  113.  Hardin 
v.  Boyd,  113  U.  S.  765,  28  L.  Ed. 
1144.  Bradley  v.  Curtis,  79  Ky.  327. 
Adams  v.  Cowherd,  30  Mo.  460. 
Dukes  v.  Turner,  44  Iowa  575.  Fitz- 
hugh  v.  Maxwell,  34  Mich.  138. 

3.  Bowen  v.  Lansing,  129  Mich. 
117  (119-121).  City  of  Marquette 
v.  Iron  Co.,  132  Mich.  130.  Re.  Stan- 
ton's Estate,  142  Mich.  491. 

4.  In  re.  Estate  of  Pulling,  97 
Mich.  376. 

5.  Pomeroy  Equity  Jurisprud- 
ence, Sec.  126.  In  the  recent  case 
of  Laysaght  v.  Edwards,  L.  R.  2  Ch. 
Div.  499,  506,  507,  Sir  George  Jessel, 
M.  R.,  states  the  effect  of  a  contract 
for  the  sale  of  land  as  follows:  "It 
appears  to  me  that  the  effect  of  a 
contract  for  sale  has  been   settled 


for  more  than  two  centuries;  cer- 
tainly it  was  completely  settled  be- 
fore the  time  of  Lord  Hardwicke, 
who  speaks  of  the  settled  doctrine 
of  the  court  as  to  it.  What  is  that 
doctrine?  It  is  that  the  moment 
you  have  a  valid  contract  for  sale 
the  vendor  becomes  in  equity  a 
trustee  for  the  purchaser  of  the 
estate  sold,  and  the  beneficial  own- 
ership passes  to  the  purchaser,  the 
vendor  having  a  right  to  the  pur- 
chase money,  a  charge  or  lien  on 
the  estate  for  the  security  of  that 
purchase  money,  and  a  right  to  re- 
tain possession  of  the  estate  until 
the  purchase-money  is  paid,  in  the 
absence  of  express  contract  as  to 
the  time  of  delivering  possession. 
In  other  words,  the  position  of  the 
vendor  is  something  between  what 
has  been  called  a  naked  or  bare 
trustee    (that  is,  a  person  without 


100 


THE  LAW  OF  LAND  CONTRACTS 


[§43  A 


§  43A.  Wife  Need  Not  Join  With  Vendee  in  Assignment  of 
Land  Contract — Exceptions. — The  wife  of  a  vendee,  under  a 
land  contract,  has  no  dower  interest  in  such  contract,  and 
she  is  not,  therefore,  under  the  Michigan  decisions  required 
to  execute  an  assignment  of  a  land  contract  in  order  to  bar 
her  interest  in  such  contract.6 

None  of  the  cases,  however,  cited  in  the  note  settle  the  ques- 


beneficial  interest),  and  a  mortgagee 
who  is  not,  in  equity  (any  more 
than  a  vendor),  the  owner  of  the 
estate,  but  Is,  in  certain  events, 
entitled  to  what  the  unpaid  vendor 
is,  viz.,  possession  of  the  estate, 
and  a  charge  upon  the  estate  for 
his  purchase-money.  Their  posi- 
tions are  analogous  in  another  way. 
The  unpaid  mortgagee  has  a  right 
to  foreclose,  that  is  to  say,  he  has 
the  right  to  say  to  the  mortgagor, 
'Either  pay  me  within  a  limited 
time,  or  you  lose  your  estate,'  and 
in  default  of  payment  he  becomes 
absolute  owner  of  it.  So  although 
there  has  been  a  valid  contract  of 
sale,  the  vendor  has  a  similar  right 
in  a  court  of  equity;  he  has  a  right 
to  say  to  the  purchaser,  'Either  pay 
me  the  purchase-money  or  lose  the 
estate.'  Such  a  decree  has  some- 
times been  called  a  decree  for  can- 
cellation of  the  contract,  time  is 
given  by  a  decree  of  the  court  of 
equity,  and  if  the  time  expires  with- 
out the  money  being  paid,  the  con- 
tract is  cancelled  by  the  decree  or 
judgment  of  the  court,  and  the 
vendor  becomes  again  the  owner  of 
the  estate  (i.  e.,  equitable  as  well 
as  legal  owner).  But  that,  as  it  ap- 
pears to  me,  is  a  totally  different 
thing  from  the  contract  being  can- 
celled, because  there  was  some 
equitable  ground  for  setting  it  aside. 
Being  a  valid  contract,  it  has  this 
remarkable  effect,  that  it  converts 


the  estate,  so  to  say,  in  equity;  it 
makes  the  purchase-money  a  part 
of  the  personal  estate  of  the  vendor, 
and  it  makes  the  land  a  part  of 
the  real  estate  of  the  vendee;  and 
therefore  all  those  cases  on  the 
doctrine  of  constructive  conversion 
are  founded  simply  on  this,  that 
a  valid  contract  actually  changes 
the  ownership  of  the  estate  in 
equity.  That  being  so,  is  the 
vendor  less  a  trustee  because  he 
has  the  rights  which  I  have  men- 
tioned? I  do  not  see  how  it  is 
possible  to  say  so.  If  anything 
happens  to  the  estate  between  the 
time  of  sale  and  the  time  of  com- 
pletion of  the  purchase,  it  is  at 
the  risk  of  the  purchaser.  If  it 
Is  a  house,  that  is  sold,  and  the 
house  Is  burned  down,  the  pur- 
chaser loses  the  house.  In  the 
same  way  there  is  a  correlative 
liability  on  the  part  of  the  vendor 
in  possession.  He  is  not  entitled 
to  treat  the  estate  as  his  own.  If 
he  wilfully  damages  or  injures  it, 
he  is  liable  to  the  purchaser;  and 
more  than  that,  he  is  liable  if  he 
does  not  take  reasonable  care  of  it." 

6.  Stevens  v.  Leonard,  122  Mich. 
125.  Dalton  v.  Mertz,  197  Mich.  390. 
Holding  that  a  wife's  signature  was 
not  necessary  to  the  transfer  of  the 
land  contract  by  assignment.  Daily 
v.  Litchfield,  10  Mich.  29.  Beebe  v. 
Lyle,  73  Mich.  114. 


§  44]  LAND  CONTRACTS  101 

tion  as  to  whether  or  not,  where  the  assignment  of  the  con- 
tract covered  a  homestead,  would  require  the  signature  of  the 
wife.  Compiled  Laws,  1915,  Sec.  12889,  provide  with  respect  to 
a  homestead  that  the  alienation  of  such  land  by  the  owner 
thereof,  if  a  married  man,  shall  not  be  valid  without  the  signa- 
ture of  the  wife  to  the  same.  In  view  of  this  statute,  there 
is  some  question  as  to  whether  or  not  the  wife's  signature 
would  be  required  in  transfers  involving  the  homestead,  and 
the  safer  practice  would  be  to  procure  her  signature  in  assign- 
ments involving  transactions  of  this  character.7 

§  44.  Nature  of  Estate  Where  Vendees  are  Husband  and 
Wife. — Where  a  husband  and  wife  are  named  as  vendees  in  a 
land  contract,  it  frequently  occurs  that  one  or  the  other  may 
die  before  the  conditions  of  the  contract  are  discharged,  and 
the  vendor  is  required  to  make  conveyance  of  the  property. 
Where  there  are  children,  or  other  heirs  of  the  deceased  spouse 
living  in  addition  to  the  wife  or  husband  of  such  deceased 
spouse,  the  question  then  presents  itself  as  to  whether  the 
interest  of  such  vendees  was  an  estate  by  the  entirety,  and 
upon  the  death  of  one  of  the  vendees  to  the  contract,  the  inter- 
est of  such  deceased  spouse  passes  to  the  survivor. 

In  such  cases,  the  interest  of  the  vendees  arising  from  such 
a  contract  is  an  estate  by  entirety,  and  upon  the  death  of 
either  spouse  the  entire  interest  of  the  land  contract  decends 
to  the  survivor,  and  the  children  of  such  deceased  spouse,  or 
other  heirs  take  no  interest  in  the  property.8  and  9 

7.  Matta  v.  Kippola,  102  Mich.  117.  payments    and    at    certain    times, 

8.  The  facts  in  the  case  of  Rob-  Brown  was  to  convey  to  William 
son  v.  Townley,  176  Mich.  581,  are  Robson  and  Elizabeth  Robson,  his 
as  follows:  "William  Robson  ac-  wife,  by  warranty  deed  the  said 
quired  a  certain  farm  by  homestead  land,  free  and  clear  from  all  en- 
entry.  Suffering  certain  financial  cumbrances.  This  contract  is  made 
vicissitudes,  certain  mortgages  between  David  Brown  and  William 
were  foreclosed  on  this  property,  Robson  and  Elizabeth  Robson,  his 
and  finally  to  pay  his  obligations  wife,  in  the  usual  form,  the  con- 
Robson  and  his  wife  joining,  as  of  tract  in  full  being  found  in  de- 
course  she  would  have  to  do,  exe-  fendant's  Exhibit  'A',  Supreme 
cuted  a  warranty  deed  to  one  David  Court  Record  635,  June  Term,  1913. 
Brown  and  took  back  a  land  con-  On  August  16th,  1901,  William 
tract,  whereby  upon  the  payment  of  Robson  died  and  about  two  years 
a  stipulated  amount  to  be  made  in  later   his   wife,    Elizabeth    Robson, 


102 


THE  LAW  OF  LAND  CONTRACTS 


[i 


45 


§  45.  Respective  Shares  When  Vendors  are  Husband  and 
Wife,  Joined  with  Others. — It  follows,  therefore,  from  the  doc- 
trine discussed  in  the  foregoing  section  that  the  husband  and 
wife  as  vendees  in  a  land  contract  take  by  the  entirety  as  one 
interest,  and  when  they  are  named  as  vendees  in  such  con- 
tract with  another  person  they  take  together  the  fractional 
interest  of  one  person  instead  of  two;  thus,  where  A  and  B. 
husband  and  wife  are  named  as  vendees  in  a  land  contract  with 
D,  D  will  hold  one-half  interest  in  the  premises,  and  A  and  B 
together  a  moiety  of  the  property.9 

This  doctrine  has  been  confirmed  by  statute.10  If  the  con- 
veyance to  a  husband  and  wife  expressly  provides  that  they 
shall  take  as  tenants  in  common  the  prevailing  modern  doctrine 
is  that  they  will  not  take  by  entireties.11 


died.  The  bill  of  complaint  in  the 
above  case  of  Robson  v.  Townley 
was  filed  by  the  ten  surviving  heirs- 
at-law  of  William  Robson  for  par- 
tition of  the  premises.  Under  the 
contract,  upon  compliance  with  its 
terms,  Robson  and  his  wife  were 
entitled  to  have  a  deed  from  Brown 
creating  the  estate  by  the  entire- 
ties, which,  on  the  death  of  Rob- 
son, would  have  gone  to  his  wife 
by  the  right  of  survivorship.  If 
Robson  had  outlived  his  wife,  un- 
questionably his  heirs  would  have 
been  entitled  to  inherit.  It,  there- 
fore, clearly  appears  that  if  the 
contract  had  been  carried  out,  the 
situation  would  have  been  the  same 
as  now  left  by  the  decree  of  the 
court,  and  complainant  has  no  right 
to  complain,  and  is  not  entitled  to 
the  relief  prayed  for."  See  discus- 
sion in  Gates  on  Real  Property, 
Sec.  467.  Forlich  v.  Blackstone,  155 
Mich,  604;  McMillan  v.  Schneider, 
147  Mich.  263;  Bauer  v.  Long,  147 
Mich.  351. 

9.  It  is  now  well  settled  that 
where  a  vendee's  interest  in  a  con- 
tract has  been  assigned   to  a  hus- 


band and  wife,  they  take  as  tenants 
by  the  entirety.  Stevens  v.  Wake- 
man,  213  Mich.  560-567;  Lergen  v. 
Roiser,  200  Mich.  328-341;  Auditor 
General  v.  Fisher,  84  Mich.  128-132; 
Barber  v.  Harris,  N.  Y.  1836,  15 
Wend.  615;  Jacobs  v.  Miller,  50 
Mich.  119  (124)  15  N.  42;  Dowling 
v.  Salliotte,  83  Mich.  131  (135-136), 
47  N.  W.  225;  Re.  Appeal  of  Nellie 
Lewis,  85  Mich.  340  (343-346);  Ful- 
lager  v.  Stockdale,  138  Mich.  363 
(367-368),  101  N.  W.  567. 

10.  All  grants  and  devises  of 
lands,  made  to  two  or  more  persons 
except  as  provided  in  the  follow- 
ing section,  shall  be  construed  to 
create  estates  in  common,  and  not 
in  joint  tenancy,  unless  expressly 
declared  to  be  in  joint  tenancy. 
Sec.  11562  C.  L.  1915.  The  pre- 
ceding section  shall  not  apply  to 
mortgages,  nor  to  devises  or  grants 
made  in  trust,  or  made  to  execu- 
ors,  or  to  husband  and  wife.  Sec. 
11563  C.  L.  1915. 

11.  Stewart,  On  Husband  and 
Wife,  307-310;  Tiedman,  On  Real 
Property  (3  Ed.),  183;  Freeman, 
On    Co-tenancy   and   Partition,    72; 


$46 


LAND  CONTRACTS 


103 


§  45A.  Effect  of  Mutual  Releases  of  Property. — When  mari- 
tal difficulty  arises,  the  husband  and  wife  frequently  execute 
property  settlements  in  which  they  mutually  "release  and  sur 
render"  all  claims  in  each  others  property. 

If  the  language  in  such  contracts  is  clear  and  decisive  and 
indicates  a  present  intent  to  mutually  release  and  transfer  the 
respective  rights  of  the  parties  in  each  others  property,  courts 
of  equity  will  uphold  such  transfers  and  agreements  even 
though  they  are  not  accompanied  by  deeds  of  conveyance,  pro- 
vided of  course  the  contract  is  fair  to  the  parties,  and  free 
from  fraud  and  deceit.12 

§  46.  Land  Contracts,  Capacity  of  Parties. — The  mental  ca- 
pacity to  enter  into  a  contract  is  absolutely  necessary  to  for- 
mation of  a  binding  agreement,  therefore,  inability  to  exercise 
the  reasoning  faculties  or  to  give  an  intelligent  assent  to  the 
terms  of  the  contract  through  insanity  or  mental  deficiency  by 
any  of  the  parties  thereto  will  prevent  the  formation  of  a  valid 
contract,13  this  is  too  elementary  to  require  the  citation  of 
authority. 


Minor  v.  Brown,  133  N.  Y.  308; 
Hiles  v.  Fisher,  144  N.  Y.  306; 
Wales  v.  Coffin  (95  Mass),  13  Allen 
213;  McDermott  v.  French,  15  N.  J. 
Eq.  48;  Bidler  v.  Robinson,  73  N.  J. 
Eq.  169;  Fladung  v.  Rose,  58  Md.  13. 

12.  Barton  v.  Barton,  147  Mich. 
318.  In  the  Barton  case,  for  a 
certain  consideration,  namely,  of 
agreed  payments  to  be  made  the 
wife  "surrendered  all  claims  to  and 
right  for  dower,  support,  and  all 
claims  of  every  name,  nature  and 
description."  The  husband  then 
died  testate  and  the  wife  sought 
to  obtain  her  widow's  share  of  the 
testator's  estate.  It  was  held  that 
the  contract  being  fully  executed, 
followed  by  a  consideration,  pre- 
vented the  wife  from  enforcing  any 
claim  against  the  husband's  estate 


as  his  widow.  This  opinion  con- 
tains an  interesting  discussion  in 
which  a  number  of  cases  are  dis- 
cussed and  distinguished.  In  re. 
Geannott's  Estate,  212  Mich.  442: 
In  this  case  a  contract  was  exe- 
cuted between  the  husband  and 
wife  in  which  the  following  lan- 
guage was  used:  "And  does  hereby 
release  all  dower  rights  which  she 
now  has  or  may  hereafter  have  in 
any  property  of  the  said  Jos.  C 
Geannott,  each  of  said  parties  do 
hereby  release  any  claim  which 
they  have  or  may  hereafter  have 
in  or  to  the  property  of  the  other." 
The  husband  in  this  case  attempted 
to  claim  an  interest  in  the  estate  of 
Florence  Geannott  and  the  court 
held  he  could  not  do  so. 

13.    Elliott  On  Contracts,  Sec.  260. 


104  THE  LAW  0F  LAND  CONTRACTS  [§  46 

Capacities  to  make  a  contract  is  the  exception  and  not  the 
general  rule,  therefore  the  law  presumes  that  there  is  a  full 
capacity  to  contract.  Persons  entering  into  an  agreement  will 
be  presumed  to  be  adults  and  competent  to  enter  into  the  con- 
tract they  have  made.14  The  incapacity  to  enter  into  a  con- 
tract might  be  classified  under  two  general  heads:  they  are, 
natural  incapacity,  such  as  insanity  or  imbecility  including 
drunken  persons,  and  those  who  are  made  by  operation  of  the 
law  incapable  of  entering  into  the  contract,  such  as  infants  and 
married  women,  at  common  law.  For  a  full  discussion  of  this 
subject,  which  is  not  peculiar  to  land  contracts,  and  therefore 
not  fully  treated  here,  the  reader  is  referred  to  a  general  work 
on  contracts  relating  to  this  subject.16 

§  47.  Land  Contracts,  Execution,  Statutory  Requirements. — 

By  statute  16  it  is  provided  that  contracts  for  the  sale  of  land 
shall  be  executed  in  the  presence  of  two  witnesses  who  shall 
subscribe  their  names  as  such,  and  the  vendor  may  acknowl- 
edge the  same  before  a  notary  public  or  other  official  entitled 
to  take  such  acknowledgment  within  this  state.  The  vendee 
need  not  acknowledge  the  contract,  but  must  sign  it.  It  should 
be  noted  that  the  statute  does  not  require  the  contract  to  be 

14.  Elliott  On  Contracts,  Sec.  261;  15.  Elliott  On  Contracts,  Sec.  262. 

Hlckson   v.   Aylward,   3    Moll.    15;  16     That  contracts  for  the  sale  of 

Foltz  v.  Wert,  103  Ind.  404,  2  N.  E.  land  Qr  any  Intereat  therein,  shall 

950;  Paulus  v.  Reed,  121  Iowa  224,  be  executed  ln  the  preSence  of  two 

96  N.  W.  757;  Merchants  Nat.  Bank  witnesse8;  wno  Bhall  BUbscribe  their 

v.  Soesbe,  138  Iowa  354,  116  N.  W.  names  thereto  as  such,  and  the  ven- 

123;  Nason  v.  Chicago,  etc.,  R.  Co..  dor  named   ln   8Uch   contract,  and 

149  Iowa  608,  128  N.  W.  854  (hold-  executing  the  same  may  acknowl- 

ing  mere  physical  weakness  as  a  edgQ  the  execution  thereof  before 

general  rule  insufficient  to  avoid  a  any  judg6j   or  commi8sloner  of   a 

contract) ;  Mathews  v.  Nash,  161  cQurt  Qf  record(  Qr  before  any  no_ 
Iowa  125.  130  N.  W.  796;  Farnamy. 

Brooks,  9  Pick   (Mass.)   212;    1  El-  **  *                 \            ,              „.     ^ 

~      ,,       ««,-..«/.    «,  mn  .  within  this   state     and  the  officer 

liott,  On  Ev.,  Sec.  125-126;  3  Elliott  w      "*                      ' 

_      '                 on„„              ,  „    -» __  taking  such  acknowledgment  shall 

On  Ev.,  Sec.  2266;  see  also,  Moore  *«»»■*"&  »« 

v.  Gilbert,  175  Fed.  1,  99  C.  C.  A.  endorse  thereon  a  certificate  of  the 

141;    Hauber  v.  Liebold,   76  Nebr.  acknowledgment   thereof,    and    the 

706,  107  Admrs.  78  Vt.  173,  64  Atl.  date  of  the  making  the  same  under 

U10.  his  hand.    Sec.  11770  C.  L.  1915. 


§  49J  LAND  CONTRACTS  105 

acknowledged  by  the  vendor  but  provides  that  he  may  ac- 
knowledge such  contract. 

If  the  vendor  does  not  acknowledge  the  contract  the  same 
will  not  be  entitled  to  registration.17  Neither  acknowledg- 
ment by  the  vendee  or  vendor  is  necessary  to  make  the  instru- 
ment valid  between  the  parties.18 

§  48.  Consideration  Need  Not  Be  Stated  in  Contract. — It  is 

provided  by  the  statute  19  that  the  consideration  of  any  con- 
tract or  agreement,  required  to  be  in  writing,  need  not  be  set 
forth  in  the  contract  or  agreement  or  in  the  note  or  memo- 
randum thereof  but  may  be  pro\jed  by  legal  evidence. 

§  49.  Land  Contracts  Acknowledgment  and  Registration. — 

If  the  vendee  of  a  land  contract  desires  to  record  the  same  so 
that  the  record  thereof  will  be  notice  to  his  rights  in  the  con- 
tract, care  should  be  exercised  to  see  that  the  vendor  executes 
a  proper  acknowledgment  of  the  contract,  as  such  an  ac- 
knowledgment is  an  essential  prerequisite  to  the  legal  record- 
ing of  such  contract,  in  the  absence  of  which  the  record  is  of 
no  validity  so  far  as  providing  notice  to  any  third  party  of  the 
vendee's  rights.20 

While  it  is  not  essential  that  the  certificate  of  acknowledg- 
ment shall  be  in  any  prescribed  form,  nevertheless,  the  essen- 
tial fact  must  appear  in  the  certificate  or  in  other  portions  of 

17.  No  deed,  mortgage  or  other      369;  Prive  v.  Haynes,  37  Mich.  489; 
instrument    in    writing,    which    by      Baker  v.  Clark,  52  Mich.  22. 

law    are    required    to    be    acknowl-  19    (<The  consideratIon  of  any  con. 

edged,  affecting  the  title  to  lands,  tract  or  agreement(  required  by  the 

or   any    interest   therein,    shall    be  provision  of  thls  chapter  to  be  In 

recorded  by  the  register  of  deeds  writIng>   need   not  be   8et  forth  ln 

of    any    county,    unless    the    same  fte    contract    or   agreement    or    in 

shall    be    duly    witnessed    and    ac-  the  note   or  memorandum   thereof, 

knowledged,  or  proved  as  provided  but  may  be   proved   by  any  other 

by    this    chapter    and    the    amend-  legal  evidence.     (C.  L.  1915,  11978; 

ments    thereto.     Sec.    1174S    C.  L.  history,    C.    L.    57,   71,   4695;    How. 

1915.  6182  C.  L.  97,  95112,  consideration; 

18.  Dougherty  v.  Randall,  3  Mich.  Smith  v"  Sheridan,  175  Mich.  403.) 
581;    King   v.    Carpenter,   37    Mich.  20.  Sec.    25    in    the    entry    books 


106 


THE  LAW  OF  LAND  CONTRACTS 


[§49 


the  instrument.  If  the  vendee  is  in  possession  of  the  property, 
such  possession  is  notice  to  the  world  without  any  recording 
of  the  instruments,  but  difficulty  may  arise  in  connection  with 
possession  of  vacant  property  where  neither  the  vendor  or 
vendee  exercises  acts  of  ownership  in  relation  thereto,  in  such 
case  to  protect  the  vendee,  he  must  either  record  the  contract 
or  exercise  acts  of  ownership  over  the  property  which  will  be 
notice  to  the  world. 

Where  the  initial  payment  made  upon  a  land  contract  is 
small,  it  is  not  usually  customary  to  record  such  contracts, 
therefore  the  acknowledgment  thereof  is  not  important,  the 
vendee  in  such  cases  relying  upon  the  financial  responsibility 
and  honesty  of  the  vendor  to  carry  out  the  terms  of  the  con- 
tract and  make  conveyance  in  accordance  with  the  terms  there- 
of, but  where  a  substantial  sum  of  money  is  paid,  as  the  initial 
payment,  or  substantial  rights  are  involved  in  such  contract, 
it  would  seem  desirable  to  have  the  same  recorded  and  not  trust 
to  the  financial  exigencies  which  the  vendor  may  experience. 


(book)  of  deeds  the  register  shall 
enter  all  deeds  of  conveyance  ab- 
solute in  their  terms,  and  not  in- 
tended as  mortgages  or  securities, 
and  all  copies  left  as  cautions  and 
in  the  entry  book  of  mortgages  he 
shall  enter  all  mortgages  and  other 
deeds  intended  as  securities,  and 
all  assignments  of  any  such  mort- 
gages or  securities;  and  in  the  en- 
try book  of  levies  he  shall  enter 
all  levies,  attachments,  notices  or 
lis  pendens,  sheriff's  certificates  of 
sale,  and  United  States  Marshal's 
certificates  (Certificate)  of  sale,  not- 
ing in  such  books,  the  day,  hour  and 
minute  of  the  reception  and  other 
particulars,  in  the  appropriate  col- 
umns in  the  order  in  which  such 
instruments  shall  be  considered  as 
recorded  at  the  time  so  noted.  And 
the  said  record  of  such  levies  at- 
tachments, notices,  lis  pendens, 
sheriff's  certificates,  marshal's  cer- 
tificates, and  the  original  papers  re- 


quired by  the  statute  to  be  filed  to 
perfect  such  levies,  attachments, 
notices,  lis  pendens  and  certificates 
on  file  in  the  office  of  the  register 
of  deeds,  shall  be  notice  to  all  per- 
sons, of  the  liens,  rights  and  inter- 
ests acquired  by  or  involved  in  such 
proceedings,  and  all  subsequent 
owners  or  incumbrancers  shall  take 
subject  to  such  liens,  rights  or  in- 
terests. 

Any  contract,  executed  and  ac- 
knowledged according  to  the  fore- 
going provisions,  shall,  with  the 
certificates  thereto  attached,  be  en- 
titled to  be  recorded  in  the  office 
of  the  Register  of  Deeds  of  the 
county  where  the  lands  lie,  and  the 
recording  of  the  same  shall  have 
the  same  force  and  effect  as  to  sub- 
sequent encumbrances  and  pur- 
chasers, as  the  recording  of  deeds 
and  mortgages,  as  now  provided  by 
law.     Sec.  11773  C.  L.  1915. 


§  50]  LAND  CONTRACTS  107 

§  50.  Form  of  Acknowledgment  Statutory  Provision. — The 

statute  provides  several  forms  for  the  acknowledgment  of 
instruments  for  natural  persons  acting  in  their  own  right,  for 
natural  persons  acting  by  attorney  and  for  corporations  or 
join  stock  associations.    Those  forms  are  as  follows : 

(1)  Beginning  in  all  cases  by  a  caption  specifying  the  state 
and  county  where  the  acknowledgment  is  taken. 

(a)   In  the  case  of  natural  persons  acting  in  their  own  right : 

On  this day  of 19....,  before  me  personally 

appeared  A.  B.  (or  A.  B.  and  C.  D.),  to  me  known  to  be  the 
person  or  persons  described  in  and  who  executed  the  foregoing 
instrument,  and  acknowledged  that  he  (or  they)  executed  the 
same  as  his  (or  their)  free  act  and  deed. 

(2)  In  the  case  of  natural  persons  acting  by  attorney: 

On  this day  of 19—.  before  me  personally 

appeared  A.  B.  to  me  known  to  be  the  person  who  executed 
the  foregoing  instrument  in  behalf  of  C.  D.  and  acknowledged 
that  he  executed  the  same  as  the  free  act  and  deed  of  said  C.  D. 

(3)  In  case  of  corporations  or  joint  stock  associations: 

On  this  day  of ,  19....,  before  me  appeared 

A.  B.  to  me  personally  known,  who  being  by  me  duly  sworn 
(or  affirmed),  did  say  that  he  is  the  president  (or  other  officer 
or  agent  of  the  corporation  or  association),  of  (describing  the 
corporation  or  association)  and  that  the  seal  affixed  to  said 
instrument  is  the  corporate  seal  of  said  corporation  (or  asso- 
ciation), and  that  said  instrument  was  signed  and  sealed  in 
behalf  of  said  corporation  (or  association)  by  authority  of  its 
board  of  directors  (or  trustees)  and  said  A.  B.  acknowledged 
said  instrument  to  be  the  free  act  and  deed  of  said  corporation 
(or  association). 

In  case  the  corporation  or  association  has  no  corporate  seal, 
omit  the  words  "the  seal  affixed  to  said  instrument  is  the  cor- 
porate seal  of  said  corporation  (or  association),  and  that"  and 
add,  at  the  end  of  the  affidavit  clause,  the  words  "and  that  said 
corporation  (or  association)  has  no  corporate  seal." 


108 


THE  LAW  OF  LAND  CONTRACTS 


[§50 


In  all  cases  add  signature  and  title  of  the  officer  taking  the 
acknowledgment. 

§  51.  Authentication  of  Written  Instruments  Executed  Out- 
side of  the  State. — The  statute  provides  a  form  of  authentica- 
tion of  deeds  or  other  written  instruments  when  taken  outside 
this  state  and  within  any  other  state  or  territory  or  district 
of  the  United  States.23  In  case  the  acknowledgment  has  been 
taken  by  a  notary  public  of  any  other  state  (or  territory), 
his  notarial  seal  attached  to  the  instrument  will  be  a  sufficient 
authentication,  and  such  instrument  may  be  read  in  evidence 
in  a  court  of  this  state  or  recorded  without  any  additional 
certificate.  If  the  magistrate  be  one  not  possessed  of  a  seal 
such  as  a  justice  of  the  peace,  or  other  official,  then  the  instru- 
ment must  be  authenticated  in  accordance  with  the  form  laid 
down  in  the  statute. 

§  52.  Acknowledgments  in  Other  States  and  Territories. — 

The  statute  provides  that  contracts  executed  in  other  states 
and  territories  of  the  United  States  may  be  executed  in  ac- 
cordance with  the  laws  of  such  states,  territory  or  district 
or  in  accordance  with  the  laws  of  the  State  of  Michigan  24  and 

23.  Sec.   175   C.   L.   1915.     Begin     acquainted    with    the    handwriting 


with  a  caption  specifying  the  state, 
territory  or  district,  and  county  or 
place  where  the  authentication  is 
made. 

"I,  ,  clerk  of ,  in 

and  for  said  county,  which  court 
is  a  court  of  record,  having  a  seal 

(or  I,  ,  the  secretary  of 

state  of  such  state  or  territory)  do 

hereby  certify  that ,  by  and 

before  whom  the  foregoing  acknowl- 
edgment (or  proof)  was  taken,  was 
at  the  time  of  taking  the  same,  a 
notary  public  (or  other  officer)  re- 
siding or  authorized  to  act  in  said 
county,  and  was  duly  authorized  by 
the  laws  of  said  state  (territory 
or  district)  to  take  and  certify  ac- 
knowledgments or  proofs  of  deeds 
of  land  in  said  state  (territory  or 
district)  and  further  that  I  am  well 


of  said  and  that  I  verily 

believe  that  the  signature  of  said 
certificate  of  acknowledgment  (or 
proof)  is  genuine. 

In  testimony  whereof,  I  have 
hereunto  set  my  hand  and  affixed 
the  seal  of  the  said  court  (or  state) 

this  day  of  ,  19 

Sec.  11759  C.  L.  1915. 

24.  If  any  such  contract  be  exe- 
cuted in  any  other  state,  district  or 
territory,  the  same  shall  be  exe- 
cuted and  acknowledged  in  the 
same  manner  as  provided  in  sec- 
tion nine  of  chapter  one  hundred 
and  fifty  of  the  Compiled  Laws  of 
eighteen  hundred  and  seventy-one 
for  the  execution  of  deeds  in  any 
other  state,  district  or  territory. 
Sec.  11771  C.  L.  1915. 


§53] 


LAND  CONTRACTS 


109 


may  be  acknowledged  before  any  judge  or  any  court  of  record, 
notary  public,  justice  of  the  peace,  master  in  chancery,  or 
other  officer  authorized  by  the  laws  of  the  state,  territory  or 
district,  to  take  acknowledgments  therein,  or  before  any  com- 
missioner appointed  by  the  governor  of  the  state  for  such 
purposes.26 

The  forms  of  acknowledgment  set  forth  in  the  preceding 
section  may  be  used. 

§  53.  Acknowledgment  of  Contracts  Executed  in  Foreign 
Countries. — If  the  contract,  be  executed  in  a  foreign  country 
it  may  be  executed  in  accordance  with  the  laws  of  such  country 
and  the  execution  thereof  may  be  acknowledged  before  any 
notary  public  therein  or  before  any  minister  resident,  charge 
d'affairs,  commission  or  consul  of  the  Uinted  States,  and  the 
instrument  will  nevertheless  be  valid  whether  executed  in  ac- 
cordance with  the  laws  of  such  country  or  the  laws  of  this 
state.86 


25.  "If  any  such  deed  shall  be 
executed  In  any  other  state,  ter- 
ritory or  district  of  the  United 
States,  such  deed  may  be  executed 
according  to  the  laws  of  such  state, 
territory  or  district,  and  the  exe- 
cution thereof  may  be  acknowl- 
edged before  any  judge  of  a  court 
of  record,  notary  public,  justice  of 
the  peace,  master  in  chancery,  or 
other  officer  authorized  by  the  laws 
of  such  state,  territory  or  district, 
to  take  the  acknowledgment  of 
deeds  therein,  or  before  any  com- 
missioner appointed  by  the  gover- 
nor of  this  state  for  such  purpose." 
Sec.  11695  C.  L.  1915.  Sec.  9  Chap- 
ter 160,  1871. 

26.  If  any  such  contract  be  exe- 
cuted in  any  foreign  country  it  may 
be  executed  and  acknowledged  ac- 
cording to  the  provisions  contained 
in  section  eleven  of  chapter  one 
hundred  and  fifty,  Compiled  Laws 
of  eighteen  hundred  and  seventy- 
one,  providing  for  the  execution  of 


deeds  in  any  foreign  country.  Sec. 
11772  C.  L.  1915.  "If  such  deed  be 
executed  in  any  foreign  country  it 
may  be  executed  according  to  the 
laws  of  such  country,  and  the  exe- 
cution thereof  may  be  acknowl- 
edged before  any  notary  public 
therein  or  before  any  minister 
plenipotentiary,  minister  extraordi- 
nary, minister  resident,  charge  d'af- 
fairs, commissioner,  or  consul  of 
the  United  States,  appointed  to  re- 
side therein;  which  acknowledg- 
ment shall  be  certified  thereon  by 
the  officer  taking  the  same  under 
his  hand,  and  if  taken  before  a 
notary  public  his  seal  of  office 
shall  be  affixed  to  such  certificate 
provided  that  all  deeds  of  land  sit- 
uated within  this  state,  heretofore 
or  hereafter  made  in  any  foreign 
country,  and  executed  in  the  pres- 
ence of  two  witnesses,  who  shall 
have  subscribed  their  names  to  the 
same  as  such,  and  the  execution 
thereof   shall   have   been    acknowl- 


110 


THE  LAW  OF  LAND  CONTRACTS 


[§54 


§  54.  Land  Contracts  Defectively  Executed,  Curative  Stat- 
utes.— Those  sections  of  the  statute  relative  to  the  formal 
requisite  of  a  land  contract  must  be  construed  in  connection 
with  a  remedial  section  of  the  statute  27  which  provides  that 
no  conveyance  of  land  or  instrument  intended  to  operate  as 
such  conveyance,  made  in  good  faith  and  upon  valuable  con- 
sideration shall  be  wholly  void  by  reason  of  any  defects  or  any 
statutory  requisites  in  sealing,  signing  or  attestation,  acknowl- 
edgment or  certificate  of  acknowledgment  thereof.  In  con- 
struing this  section  it  has  been  held  that  where  a  contract  only 
had  one  witness  it  was  nevertheless  constructive  notice  and 
was  not  void.28 

It  has  also  been  held  that  record  of  a  deed  with  defective 
acknowledgment  operates  as  a  notice  of  right  secured  by 
deed  where  the  instrument  was  made  in  good  faith  and  on  val- 
uable consideration  and  intended  to  operate  as  a  conveyance.29 


edged  by  the  persons  executing  the 
same   before   any   one   of   the   offi- 
cers authorized  by  this  section  to 
take     such     acknowledgment,     and 
such    acknowledgment    shall    have 
been  certified  thereon,  as  above  re- 
quired,   shall    be    deemed    between 
the  parties  thereof  and  all  parties 
claiming  under  or  through  them,  as 
valid   and   effectual   to   convey   the 
legal  estate  of  the  premises  there- 
in  described;    and   whenever   such 
deed  has  been  recorded  in  the  office 
of    the    register    of    deeds    of    the 
proper  county  such  record  shall  be 
effectual   for  all   purposes   of  a  le- 
gal record,  and  the  record  of  such 
deed,  or  a  transcript  thereof,  may 
be  given   in   evidence  as  in  other 
cases;  provided,  that  nothing  here- 
in contained  shall  impair  the  rights 
of    any    person    under    a    purchase 
heretofore  made  in  good  faith  and 
on    valuable    consideration."      Sec. 
11697  C.  L.  1915.    This  is  C.  L.  1871, 
Sec.  11,  Chap.  1,  referred  to  above. 
C.   L.   1915,   Sec.   11755. 

27.  No  conveyance  of  land  or  in- 


strument   intended    to    operate    as 
such    conveyance,    made    in    good 
faith  and  upon  a  valuable  consid- 
eration whether  heretofore  made  or 
hereafter    to    be    made,    shall    be 
wholly  void  by  reason  of  any  de- 
fect  in   any   statutory   requisite  in 
the  sealing,  signing,  attestation,  ac- 
knowledgment, or  certificate  of  ac 
knowledgment    thereof;     nor    shall 
any    deed    or    conveyance,    hereto- 
fore or  hereafter  to  be  made,  de- 
signed and  intended  to  operate  as 
a  conveyance   to   any   religious   or 
benevolent  society  or  corporation, 
be  wholly   void   by  reason   of  any 
mistake  in  the  name  or  description 
of  the  grantee,  nor  because  of  any 
failure  of  such  society  or  corpora- 
tion to  comply  with  any  statutory 
provisions  concerning  the  organiza- 
tion of  such  society  or  corporation. 
C.  L.  1915,  Sec.  11784. 

28.  Aultman  Miller  &  Co.  v.  Pet- 
tys,  59  Mich.  486. 

29.  Brown  v.  McCormick,  28  Mich. 
214. 


§55]  LAND  CONTRACTS  HI 

The  record  of  a  deed  executed  in  the  state  of  New  York  in 
1839  and  recorded  in  1846  was  entirely  lacking  of  any  clerk's 
certificate  of  authentication  of  due  execution  operated  as  a 
legal  notice  of  all  rights  secured  under  it,  all  such  defects  being 
clearly  within  the  letter  and  spirit  of  the  statute.30  The  Michi- 
gan Supreme  Court  has  also  held  that  an  antenuptial  contract 
with  one  witness  is  sufficient  notice  and  is  good  against  a  mort- 
gage subsequently  executed  by  the  husband  only  contrary  to 
the  provision  of  such  contract.31  A  contract  without  any  wit- 
nesses is  not  wholly  void  but  is  constructive  notice  of  the  con- 
tent thereof.32  In  another  case,  where  the  contract  was  not 
witnessed,  the  court  held  the  same  to  be  not  void  but  sufficient 
under  the  showing  made  to  entitle  the  vendee  to  specific  per- 
formance.33 

§  55.  Land  Contracts  as  Evidence   (Certified  Copy). — The 

general  rule  in  regard  to  proof  of  documents  is  that  the  original 
shall  be  produced  unless  required  to  remain  in  some  public 
office.  If  it  belongs  in  such  office  it  can  be  proved  by  an  exem- 
plification of  the  records.34  This  general  rule,  however,  has  been 
modified  by  the  statute  in  Michigan  so  that  all  conveyances  and 
other  instruments  authorized  by  law  to  be  filed  or  recorded  and 
which  shall  be  acknowledged  and  proved  according  to  law,  a 
duly  certified  copy  of  such  instruments  may  be  read  in  evidence 
in  any  court  without  further  proof.  Under  this  section  of  the 
statute,  regardless  of  whether  or  not  the  original  of  the  con- 
tract may  be  in  possession  of  the  party  offering  such  certified 
copy,  such  copy  is  nevertheless  admissible  in  evidence  under 
the  provisions  of  the  statutes.35 

30.  Healey  v.  Worth,  35  Mich.  166.       ing  to  law,  and  if  the  same  shall 

_„     .    ..  ...,.       D   „      0  have   been    filed    or   recorded,    the 

31.  Aultman  Miller  &  Co.,  Supra.  .     m  .   .      .  .. 

record  of  a  transcript  of  the  rec- 

32.  Mier  v.  Hadden,  148  Mich.  492.       ord,  or  a  copy  of  the   instrument 

33.  Lumbering  Company  v.  Pow-  on  file  certified  by  the  officer  in 
ell    120  Mich.  58.  whose   office   the   same   may   have 

been  filed  or  recorded,  may  be  read 

34.  Bradley  v.    Silsbee,   33   Mich.       in    evidence    in    anv    court    within 

330;   Brown  v.  Cady,  11  Mich.  537.  thig    state    without    further    pr0of 

35.  All  conveyances  and  other  in-  thereof;  but  the  effect  of  such  evi- 
struments  authorized  by  law  to  be  dence  may  be  rebutted  by  other 
filed  or  recorded  and  which  shall  competent  testimony.  C.  L.  1915 
be  acknowledged  or  proved  accord-  (12508). 


112 


THE  LAW  OF  LAND  CONTRACTS 


[§56 


§  56.  Discharging  Land  Contracts  of  Record. — When  the 
vendor  in  a  land  contract  has  ceased  by  law  to  be  bound  by 
the  provisions  of  the  contract  and  is  entitled  to  a  release  there- 
from, the  vendee  named  in  said  contract  shall  upon  request 
by  such  vendor  execute  a  discharge  of  the  contract  in  the  same 
manner  as  now  provided  by  law  for  the  discharge  of  mortgages 
and  for  a  refusal  to  so  discharge  the  same  he  shall  be  subject 
to  a  penalty  in  the  sum  of  One  Hundred  ($100)  Dollars  and  also 
for  whatever  actual  damages  are  occasioned  by  his  neglect 
and  refusal  to  provide  such  discharge.86 


36.  When  the  vendor  named  in 
said  contract  has  ceased  in  law 
to  be  bound  by  the  provisions  of 
the  contract,  and  is  entitled  to  a 
release  therefrom,  the  vendee 
named  in  said  contract,  his  heirs  or 
assigns  shall,  when  requested  by 
said  vendor,  execute  a  discharge  of 
said  contract  in  the  same  manner 
as  now  provided  by  law  for  the 
discharge  (discharging)  of  mort- 
gages, and  for  a  refusal  to  so  dis- 
charge the  same  he  shall  be  sub- 
ject to  the  same  penalties  as  are 
now  provided  by  law  for  a  refusal 
to  discharge  a  mortgage  after  the 
same  has  been  fully  paid,  and  the 
party  entitled  to  have  said  con- 
tract discharged  from  the  records 
may  proceed  to  enforce  the  dis- 
charge of  the  same  as  provided 
in  section  forty-five  of  chapter 
one  hundred  and  fifty  of  the 
Compiled  Laws  of  eighteen  hun- 
dred and  seventy-one  for  enforc- 
ing the  discharge  of  mortgages, 
and  the  petition  or  bill  asking  for 
said  discharge  shall  contain  all 
the  material  averments  regarding 
the  subject  matter  thereof  required 
by  said  section  in  regard  to  mort- 
gages, so  far  as  the  same  are  ap- 
plicable to  contracts  for  the  sale  of 
lands.  Provided,  however,  that  no 
contract  for  the  sale  of  lands  shall 


be  deemed  invalid  for  want  of  ac- 
knowledgment or  recording.  C. 
L.  11774,  1915. 

The  people  of  the  State  of 
Michigan  enact  that  whenever  any 
executor,  administrator  or  guar- 
dian, appointed  by  any  probate 
court  of  this  state  shall  have  exe- 
cuted any  instrument  in  writing, 
purporting  to  be  an  assignment,  re- 
lease or  discharge  of  any  mortgage, 
or  other  evidence  of  a  lien  upon 
any  personal  or  real  property  sit- 
uate in  this  State,  the  probate  judge 
of  said  court,  or  the  register  or 
clerk  thereof,  shall,  when  so  re- 
quested, make  and  attach  to  such 
instrument  a  certificate  under  his 
hand  and  seal  of  said  court,  certi- 
fying the  date  of  issuance  of  let- 
ters of  testamentary,  of  adminis- 
tration or  guardianship,  as  the  case 
may  be,  to  such  executor,  admin- 
istrator or  guardian,  and  the  time 
to  which  they  have  continued  in 
force  unsuspended  and  unrevoked 
and  such  certificate  shall  be  en- 
titled to  record  in  the  office  of  the 
register  of  deeds,  or  other  place  of 
record,  in  any  county  in  this  state, 
with  said  instrument  when  the  lat- 
ter is  entitled  by  law  to  be  so  re- 
corded; and  such  record,  or  a  duly 
certified  copy  thereof,  shall  be  prima 
facie  evidence  of  the  facts  therein 


§57] 


LAND  CONTRACTS 


113 


§  57.  Registration  of  Land  Contracts  Where  Land  Affected 
Lies  in  Two  or  More  Counties. — It  sometimes  happens  that  the 
real  estate  sold  under  a  land  contract  lies  in  several  counties, 
and  it  therefore  becomes  desirable  to  record  the  instrument 
in  each  of  such  counties  in  order  that  it  may  be  notice  to  inno- 
cent parties  of  the  vendee's  rights  in  such  real  estate.  Where 
the  instrument  has  been  recorded  in  one  county  and  in  trans- 
mission or  otherwise  becomes  lost,  the  statute  provides  a 
method  87  of  registration  in  the  other  counties  in  such  a  case ; 
the  party  interested  may  apply  to  the  probate  judge  of  the 
county  where  the  real  estate  is  situated  and  set  up  by  verified 


certified  in  all  courts  and  legal  pro- 
ceedings in  this  state.  C.  L.  11775, 
1915. 

37.  In  all  cases  where  a  deed, 
mortgage,  or  other  instrument  af- 
fecting the  title  to  real  estate, 
shall  have  been  or  shall  be  exe- 
cuted, affecting  land  in  two  or 
more  counties,  and  when  the  same 
shall  have  been  duly  recorded 
in  the  office  of  the  register  of  deeds 
In  any  county  in  which  any  part  of 
the  lands  to  be  affected  thereby 
is  situate,  and  such  instrument 
shall  have  been  lost  or  destroyed 
before  being  recorded  in  other 
counties,  in  which  land  affected 
thereby  shall  be  situate  it  shall 
be  lawful  for  any  party  or  parties 
interested  in  such  lost  deed  or 
other  writing,  or  in  the  real  estate 
the  title  to  which  shall  be  affected 
thereby,  to  apply  to  the  judge  of 
the  probate  court  of  the  county 
where  such  real  estate  may  be 
situate  in  which  the  record  shall  not 
have  been  made,  for  an  order  to  re- 
cord a  duly  certified  transcript  of 
such  deed,  mortgage,  or  other  instru- 
ment, in  such  county,  and  thereupon 
such  judge  of  probate  shall  give  no- 
tice by  publication,  in  accordance 
with  the  practice  of  such  court,  for 


three  successive  weeks,  of  such  ap- 
plication, and  of  the  time  and  place, 
when  and  where  a  hearing  will  be 
had  thereon,  and  on  such  hearing, 
if  it  shall  appear  to  such  probate 
Judge  that  such  deed,  mortgage  or 
other  instrument  was  duly  executed 
and  has  been  legally  recorded  in 
any  county  in  this  state,  and  that 
the  same  was  lost  or  destroyed  be- 
fore being  recorded  in  other  coun- 
ties in  which  real  estate  to  be  af- 
fected thereby  was  situate,  such 
probate  judge  shall  make  an  or- 
der authorizing  a  certified  trans- 
script  of  such  deed,  mortgage,  or 
other  writing  to  be  recorded  in 
said  county,  and  shall  annex  a  duly 
certified  copy  of  such  order  to  such 
copy  of  such  deed,  mortgage,  or 
other  instrument,  and  thereupon 
such  certified  copy  of  deed,  mort- 
gage, or  other  instrument,  and  such 
order  authorizing  a  record  thereof, 
may  be  recorded  in  the  office  of 
the  register  of  deeds  of  the  county 
in  which  such  order  shall  be  made, 
and  such  record  shall  have  the 
same  force  and  effect  as  the  rec- 
ord of  the  original  would  have  had, 
had  the  same  been  recorded  before 
being  lost  or  destroyed. 

Sec.  11766,  Compiled  Laws  1915. 


114 


THE  LAW  OF  LAND  CONTRACTS 


[§57 


petition  the  fact  that  such  instrument  had  been  executed  and 
lost.  A  prayer  should  be  made  for  an  order  to  be  entered 
authorizing  the  registration  of  a  certified  copy  of  such  instru- 
ment. 

Upon  the  filing  of  such  petition,  it  becomes  the  duty  of  the 
court  to  make  an  order  requiring  three  weeks'  notice  of  hearing 
of  such  petition  by  publication  and  after  such  publication  shall 
have  been  made,  the  court,  if  upon  the  hearing  is  satisfied  of 
the  execution  of  such  instrument,  it  becomes  his  duty  to  make 
an  order  authorizing  the  registration  of  such  transcript  of  said 
instrument. 

§  58.  Possession  by  Vendee  as  Constructive  Notice  of  Con- 
tract.— Possession  of  land  by  a  contract  purchaser  is  construc- 
tive notice  of  his  rights  and  one  who  purchases  such  land 
from  the  grantor  is  chargeable  with  the  notice  of  the  rights 
of  such  occupancy  and  such  possession  may  be  either  by  person 
occupancy  on  the  part  of  the  vendee  or  through  his  tenant. 
The  effect  is  the  same,  possession  by  tenant  is  deemed  to  be 
possession  of  the  landlord.39 

§59.  The  Specific  Tax  on  Land  Contracts. — By  statute40 
a  specific  tax  of  fifty  cents  per  each  One  Hundred  ($100)  Dol- 


39.  Corey  v.  Smalley,  107  Mich. 
257;  Atkinson  v.  Akins,  197  Mich. 
297;  Woodward  v.  Clark,  15  Mich. 
104;  Russell  v.  Sweezey,  22  Mich. 
235;  Farwell  v.  Johnston,  34  Mich. 
342;  Dunks  v.  Fuller,  32  Mich.,  242; 
McKee  v.  Wilcox,  11  Mich.,  358; 
Allen  v.  Cadwell,  55  Mich  8;  Hom- 
mel  v.  Devinney,  39  Mich.,  523;  Sea- 
ger  v.  Cooley,  44  Mich.  14;  Weis- 
berger  v.  Wisner,  55  Mich.  518; 
Michie  v.  Ellair,  54  Mich.  518; 
Stevens  v.  Castel,  63  Mich.  Ill; 
Moore  v.  Kenockee  tp.,  75  Mich. 
332;  Schweiss  v.  Woodruff,  73  Mich. 
473;  Lambert  v.  Weber,  83  Mich. 
395. 

40.  See  Compiled  Laws,  Sec.  4268. 
For  the  purpose  of  this  act  all 
indebtedness  secured  by  liens  upon 


real  property  shall  constitute  that 
class  of  credit  upon  which  this  act 
imposes  a  specific  tax.  The  word 
"Mortgage"  as  used  herein  shall 
include  every  mortgage  or  other 
instrument  by  which  a  lien  is 
created  over  or  imposed  upon  real 
property,  notwithstanding  it  may 
also  be  a  lien  upon  other  property, 
or  there  may  be  other  security 
for  the  debt,  and  shall  also  include 
executory  contracts  for  the  sale  of 
real  property,  and  deeds  or  other 
instruments  that  are  given  to  se- 
cure debts.  Compiled  Laws,  Sec. 
4269.  A  tax  of  fifty  cents  for  each 
one  hundred  dollars  and  each  re- 
maining major  fraction  thereof  of 
the  principal  debt  or  obligation 
which  is,  or  under  any  contingency 


§59] 


LAND  CONTRACTS 


115 


lars  and  major  fraction  thereof,  of  the  unpaid  purchase  price 
is  imposed  on  land  contracts,  and  before  the  instrument  is 
entitled  to  registration  the  county  treasurer  must  certify  that 
such  tax  has  been  paid.  This  tax  is  in  lieu  of  all  other  general 
taxes,  including  city  assessments.41 

Unless  this  tax  is  paid,  the  land  contract  is  not  admissible 


may  be,  secured  by  a  mortgage 
upon  real  property  situated  within 
this  state  recorded  on  or  after  the 
first  day  of  January,  nineteen  hun- 
dred twelve,  is  hereby  imposed  on 
each  such  mortgage,  and  shall  be 
collected  and  paid  as  hereinafter 
provided;  provided,  that  no  tax 
shall  be  imposed  upon  any  debt 
or  obligation  which  is,  or  under 
any  contingency  may  be,  secured 
by  a  mortgage  upon  such  real  es- 
tate of  charitable,  educational  and 
scientific  institutions,  incorporated 
under  the  laws  of  this  state,  with 
the  buildings  and  other  property 
thereon,  while  occupied  by  them 
solely  for  the  purposes  for  which 
they  were  incorporated;  provided, 
that  such  exemption  shall  not 
apply  to  fraternal  or  secret  so- 
cieties, but  all  charitable  homes  of 
such  societies  shall  be  exempt;  pro- 
vided further,  that  no  tax  shall  be 
imposed  upon  any  debt  or  obliga- 
tion which  is,  or  under  any  contin- 
gency may  be,  secured  by  a  mort- 
gage upon  any  house  of  public 
worship  with  the  land  on  which 
it  stands,  the  furniture  therein 
and  all  rights  in  the  pews,  and 
upon  any  parsonage  owned  by  any 
religious  society  of  this  state  and 
occupied  as  such;  which  such  mort- 
gage is  recorded  on  or  after  the 
first  day  of  January,  nineteen  hun- 
dred and  twelve.  Provided,  fur- 
ther no  tax  shall  be  imposed  upon 
any    building   and    loan    mortgage. 


The  tax  imposed  by  this  section 
shall  be  in  addition  to  the  record- 
ing fee  now  provided  by  law.  Com- 
piled Laws,  Sec.  4275.  No  mort- 
gage or  land  contract,  which  is 
subject  to  the  tax  imposed  by  this 
act  shall  be  released,  enforced,  dis- 
charged of  record  or  received  in 
evidence  in  any  action  or  proceed- 
ing at  law  or  in  equity,  nor  shall 
any  assignment  of  or  agreement 
extending  any  such  mortgage  or 
land  contract  be  recorded  until  the 
tax  imposed  thereon  by  this  act 
shall  have  been  paid  as  in  this  act 
provided.  No  judgment  or  final  or- 
der in  any  action  or  proceeding  at 
law  or  in  equity  shall  be  made  for 
the  foreclosure  or  enforcement  of 
any  such  mortgage  or  land  con- 
tract, which  is  subject  to  the  tax 
imposed  by  this  act,  or  any  debt 
or  obligation  secured  thereby,  until 
the  tax  imposed  by  this  act  shall 
have  been  paid  as  provided  in  this 
act.  The  certificate  of  the  county 
treasurer  in  form  as  hereinafter 
provided,  shall  be  prima  facie  evi- 
dence of  the   payment  of  the  tax. 

41.  Union  Trust  Co.  v.  Detroit 
Common  Council,  170  Mich.  692. 
The  above  act  is  constitutional. 
Union  Trust  Co.  v.  Detroit  Com- 
mon Council,  Supra.  For  construc- 
tion of  the  Act  see  Economy  Power 
Co.  v.  Daskam,  74  Mich.  402-404; 
Union  Trust  Co.  v.  Rodford,  176 
Mich.  50.  Assurance  Co.  v.  Detroit 
Common  Council,  176  Mich.  80. 


116  THE  LAW  OF  LAND  CONTRACTS  [§  59 

in  evidence  in  any  court  of  the  state.  This  act  has  been  held 
constitutional.42 

As  to  payment  of  the  tax,  it  has  been  held  that  such  tax 
may  be  paid  at  any  time  prior  to  the  trial  of  the  case  or  even 
after  the  trial  has  been  entered  upon.43 

A  further  question  in  connection  with  the  specific  tax  which 
has  been  before  the  court  and  not  decided  is  whether  or  not  a 
forfeiture  of  a  land  contract  can  be  legally  declared  before  the 
payment  of  the  specific  tax.  The  last  time  this  question  was 
presented  to  the  Supreme  Court,  they  rested  their  decision 
on  other  grounds  without  deciding  this  proposition.44 

§  60.  Basis  of  Computing  Specific  Tax  on  Land  Contracts. — 

Under  Section  4268  et  seq.,  of  the  Compiled  Laws  of  Michigan, 
1915,  providing  that  no  land  contract  can  be  offered  in  evidence 
until  the  specific  tax  is  paid  to  the  county  treasurer  as  pro- 
vided in  the  act,  the  county  treasurer  is  to  be  guided  by  the 
face  of  the  instrument,  and  where  the  instrument  fails  to  show 
the  first  payment  to  have  been  made  before  the  execution  of 
the  contract,  the  tax  must  be  paid  on  the  full  consideration 
stated  therein.46 

Where  the  instrument  shows  that  the  downpayment  was  paid 
before  the  execution  of  the  contract,  the  amount  thereof  should 
be  deducted  from  the  purchase  price,  and  the  tax  computed  on 
the  balance.46 

§  61.  Sale  of  Expectant  Interests. — The  law  looks  with  dis- 
favor upon  the  sale  of  expectant  interests  in  real  estate,  and 
before  such  a  contract  can  be  enforced  it  must  be  alleged  and 
proven  that  there  was  neither  fraud  nor  oppression,  and  that 
the  ancestor  had  knowledge  of  such  contract  and  had  ac- 
quiesced therein.  The  fact  that  the  ancestor  is  insane  and  is 
incapable  of  consenting  to  the  contract  constitutes  no  exception 
to  the  rule  that  in  such  cases  where  the  ancestor  is  under  a 

42.  See  Union  Trust  Co.  v.  Detroit  44.  Krell  v.  Cohen,  supra. 
Common    Council,    supra.  45   Detroit  Land  Contract  Co>  v> 

43.  Krell  v.  Cohen,  214  Mich.  590;      Green,  202  Mich.  464. 

Nelson   v.   Breitenwischer,   194   30;  46    ghupert    y     Ingham    County 

Rodenhouse  v.  Degolio,   198  Mich.      Treas  214  Mich   333 

402. 


§  62 A] 


LAND  CONTRACTS 


117 


disability,  so  that  his  consent  cannot  be  obtained,  the  sale  of 
such  expectant  interests  will  not  be  specifically  enforced  or 
performed.47 

§  62.  Vendor's  Equitable  Lien  for  Unpaid  Purchase  Price. — 

It  is  well  settled  that  where  the  vendor  of  real  estate  takes 
no  security  for  the  payment  of  the  purchase  price  he  has  an 
equitable  lien  for  such  purchase  money  upon  the  land  so  sold.48 
This  lien  attaches  notwithstanding  the  fact  that  the  sale  did  not 
convey  a  title  in  fee  or  a  legal  title,  but  only  an  equitable  right 
or  interest.49  Such  a  lien  is  assignable  and  may  be  enforced 
against  the  land  even  though  the  statute  of  limitations  has  run 
against  the  personal  liability  of  the  vendee.60 

§  62A.  Mechanic's  Lien — On  Interset  of  Vendee. — It  is  pro- 
vided by  statute  that  a  vendee  shall  have  the  power  to  incum- 


47.  Stevens  v.  Stevens,  181  Mich. 
438  and  449. 

48.  Case  of  Lavin  v.  Lynch,  203 
Mich.  145. 

49.  Lavin  v.  Lynch,  supra;  Ort- 
man  v.  Plummer,  52  Mich.  76;  War- 
ren v.  Fenn,  28  Barb.  (N.  Y.),  333: 
Bledsoe  v.  Games,  30  Mo.  448; 
Loomis  v.  Railroad  Co.,  17  Fed.  301; 
Curtis  v.  Buckley,  14  Kan.  449; 
Board  v.  Wilson,  34  W.  Va.  609  (12 
S.  B.  778). 

In  the  case  of  Ortmann  v.  Plum- 
mer, supra,  Mr.  Justice  Campbell 
said:  "The  right  of  a  vendor  to  a 
Hen  does  not  seem  to  be  confined  to 
the  sale  of  a  legal  title  or  title  in 
fee.  The  leading  case  of  Mackreth 
v.  Symmons,  15  Ves.  329  (1  Leading 
Cases  in  Equity,  194,  and  notes), 
was  one  relating  to  what  was 
treated  as  an  equitable  title.  The 
doctrine  has  been  applied  to  copy- 
holds, and  appears  to  be  received 
as  to  all  recognized  title.  See 
Adams'  Eq.  (7th  Ed.)  p.  128,  and 
notes;  Winter  v.  Lord  Anson,  3 
Rus8.  488.    The  lien  on  an  equitable 


title  may  no  doubt  be  more  uncer- 
tain, by  reason  of  the  danger  that 
bona  fide  purchasers  from  the  legal 
holder  may  interevene  and  destroy 
it.  But  subject  to  that  risk  (which 
is  not  confined  to  equitable  estates) 
it  may  be  upheld.  In  the  present 
case  the  legal  title  is  still  in  the 
railway  company,  having  knowl- 
edge of  the  equities,  and  defendants 
are  not  bona  fide  purchasers.  We 
see  no  difficulty  in  the  nature  of  the 
title." 

50.  Lavin  v.  Lynch,  supra;  Strin- 
ger v.  Gamble,  155  Mich.  295. 

Bartlett  v.  Bartlett,  103  Mich.  293. 
In  a  summary  proceeding  to  recover 
possession  of  lands  instituted  by 
the  holder  of  the  legal  title,  it  was 
held  that  the  defendant  cannot  set 
up  as  defense  a  verbal  agreement 
made  by  him  with  the  owner  for 
the  purchase  of  the  land  coupled 
with  evidence  of  part  performance 
on  his  part;  his  remedy  if  he  has 
any  being  in  equity. 

Pomeroy's  Equity  Jurisprudence, 
Section  2240,  Volume  5. 


118 


THE  LAW  OF  LAND  CONTRACTS 


[§62  A 


ber  his  equitable  interest  in  the  real  estate  in  the  same  manner 
as  the  actual  holder  of  the  legal  title,51  and  if  the  land  contract 
for  the  property  covered  by  the  lien  is  forfeited  or  surrendered 
by  the  vendee  during  the  life  of  the  lien,  the  lien  holder  shall  be 
subrogated  to  the  rights  of  the  vendee  as  they  existed  before 
forfeiture. 


51.  "Any  person  furnishing  serv- 
ices or  materials  for  the  erection  of 
a  new  building  or  structure  upon 
land  to  which  the  person  contract- 
ing for  such  erection  has  no  legal 
title,  shall  have  a  lien  therefor  up- 
on such  (building)  buildings  or 
structure;  and  the  forfeiture  or  sur- 
render of  any  title  or  claim  of  title 
held  by  such  contracting  person  to 
such  land  shall  not  defeat  the  lien 
upon  such  building  or  structure  of 
such  person  furnishing  services  or 
materials  as  aforesaid.  In  case  the 
property  covered  by  the  lien  is  held 
by  the  vendee  in  a  land  contract, 
and   he   surrenders   or  forfeits   his 


rights  thereunder,  the  person  or 
persons  holding  such  liens  may  be 
subrogated  to  the  rights  of  such 
vendee,  as  his  rights  existed  im- 
mediately before  such  surrender  or 
forfeiture,  by  performing  the  coven- 
ants contained  in  such  contract 
within  thirty  days  after  such  for- 
feiture or  surrender  is  made." 

Compiled  Laws,  1915,  Sec.  14798. 

Where  the  contract  purchaser  of 
land  constructs  a  building  thereon, 
the  lien  does  not  attach  to  the  en- 
tire land,  but  only  to  the  building. 

Fuller  v.  Loan  &  Bldg.  Assn.,  110 
Mich.  73;  Sheldon  Kamm  &  Co.  v. 
Bremer,  166  Mich.  579. 


CHAPTER  V 

CORRECTING  DEFECTS  IN  THE  TITLE 
MARKETABLE  TITLES 
TITLE  BY  ADVERSE  POSSESSION 
ADVERSE  POSSESSION  OF  VACANT,  WILD  AND  UNOCCUPIED 

LAND 

REMEDYING  DEFECTS  IN  THE  TITLE  BY  AFFIDAVIT 

DISCHARGING  ANCIENT  MORTGAGES 

THE  ACTION  TO  QUIET  TITLE 

PLEADING,  PRACTICE  AND  FORMS 

§  63.  Marketable  Titles — Terminology. 

§  64.  Clouds  on  the  Title — Definition. 

§  65.  Discharge  of  Mortgages  of  Record  by  Petition. 

§  66.  Defects  of  Record,  Remediable  Affidavits— Forms. 

§  67.  Form  of  Petition  for  Discharge  of  Mortgage. 

§  68.  Form  of  Certificate  Discharging  Mortgage. 

§  69.  Defects  in  Title  Curable  by  Affidavits. 

§  70.  Title  by  Adverse  Possession. 

§  71.  Adverse  Possession  When  Five-Year  Period  Sufficient  to  Vest  Title. 

§  72.  Adverse  Possession  by  One  Co-Tenant  Against  Another. 

§  73.  Adverse  Possession  Vendee  Against  Vendor. 

§  74.  Adverse  Possession  of  Vacant,  Wild  and  Unoccupied  Land. 

§  75.  Adverse  Possession  Against  the  State. 

§  76.  Tacking  Successive  Possession. 

§  77.  Titles  Held  to  Be  Defective — Michigan  Decisions. 

§  78.  Defective  Titles — Decisions  from  Other  States. 

Introductory  Statement. — In  every  sale  of  real  estate  the 
question  as  to  whether  or  not  the  vendor's  title  is  marketable 
is  likely  to  arise.  Sometimes  the  vendor  holds  title  by  adverse 
possession;  again  there  are  certain  clouds  and  defects  in  the 
title  about  which  there  may  be  serious  question  as  to  whether 
the  title  is  or  is  not  marketable.  The  close  connection  which 
this  subject  bears  to  the  subject  of  land  contracts  generally 
has  impelled  the  author  to  include  in  this  treatise  a  discussion 
of  the  subjects  included  in  this  chapter. 

§  63.  Marketable  Titles — Terminology. — A    land    contract, 
whether  preliminary   in   character  or  otherwise,   usually  re- 


120  THE  LAW  OF  LAND  CONTRACTS  [§  63 

quires  the  vendor  to  furnish  a  marketable  title  to  the  property 
he  seeks  to  sell.  Some  contracts  employ  the  term  "merchant- 
able" instead  of  "marketable."  In  other  instances  one  or  more 
of  the  terms  "good,"  "complete,"  "perfect,"  "valid,"  or  "clear 
title,"  are  used.  Again  the  contract  may  require  the  vendor 
to  furnish  an  abstract  of  title  showing  a  good  title  or  any 
other  of  the  above  mentioned  descriptive  terms,  of  record  or 
may  require  the  vendor  to  furnish  an  abstract  disclosing  such 
title.  A  contract  to  furnish  a  good  title  as  shown  by  the  ab- 
stract of  record  is  a  much  different  covenant  than  one  merely 
requiring  a  vendor  to  furnish  a  good  title. 

We  shall  now  consider  the  legal  effect  of  these  various  terms 
when  used  in  a  contract  for  the  sale  of  land. 

(a)  Marketable  or  Merchantable  Title.  The  courts  have 
held  these  terms  are  synonymous.1  A  title  to  real  estate  is 
merchantable  or  marketable  in  the  vendor  when  the  same  is  free 
from  all  reasonable  doubt2  and  a  title  is  held  to  be  subject  to  a 
reasonable  doubt  if  the  facts  disclosed  in  relation  thereto 
would  raise  a  suspicion  in  the  minds  of  reasonable  men  as  to 
the  validity  of  the  title.3  Some  courts  have  denned  a  doubtful 
title  to  be  such  a  material  defect  in  the  title  to  land  as  will 
cause  just  apprehension  and  a  reasonable  doubt  in  the  mind 
of  a  reasonably  prudent  and  intelligent  person  acting  on  com- 
petent legal  advice  that  will  prompt  him  to  refuse  to  take  the 
land  for  that  reason.4 

1.  Bradway   v.   Miller,   200   Mich,  chantable    title,    and    that   the    ab- 
648.  stracts   do  not   show   it.     The   dis- 

2.  Gates    on    Real   Property    Sec.  tinction  must  be  recognized.     This 

606;   Thompson's  Title  to  Real  Es-  court  and  other  courts  have  recog- 

tate,  Sec.  77;    Sugden  on  Vendors,  nized   *■     If  an  abstract  does  not 

page   584;    Bradway  v.   Miller,   200  on   its   face   show   a  merchantable 

Mich.  648.  title>  and  lt  re(luires  Paro1  Proof  to 

establish  the  fact  that  the  title  is 


3.  Bradway  v.  Miller,  200  Mich. 
648-655;  Lake  Erie  Land  Co.  v. 
Chilinski,  197  Mich.  314;  Ogooshe- 
vitz  v.  Arnold,  197  Mich.  203. 


a  merchantable  one,  a  contract 
agreeing  to  furnish  an  abstract 
showing  a  merchantable  title  is  not 
complied  with.  The  abstract  itself 
4.  "Counsel  insists  that  one  may      mus(.  furnish  the  evidence  that  the 

have    a    merchantable    title,    even      UUe  ig  merchantable."     Lake  Erie 

though  the  abstract  does  not  show      Land    Co    y     Chilinski(    197    Mich. 

it,    and    urges    that    this    contract      222 

calls  for  an  abstract  showing  a  mer- 


R  63]  CORRECTING    DEFECTS    IN    THE   TITLE  121 

(b)  Marketable  Titles  of  Record.  Contracts  for  the  sale  of 
lands  frequently  contain  a  provision  that  the  vendor  shall  fur- 
nish an  abstract  of  title  showing  a  merchantable  title  of  record, 
or  "as  shown  by  the  abstract,"  it  is  lawful  and  competent  for 
parties  to  enter  into  such  agreements,  and  when  they  do,  the 
abstract  itself  must  disclose  a  merchantable  title,  and  a  title 
by  adverse  possession  not  shown  of  record  will  not  be  sufficient.5 
There  is  no  statute  authorizing  the  placing  of  affidavits  on 
record  to  show  that  the  vendor  has  held  possession  of  the  prop- 
erty adversely  for  the  length  of  time  required  by  the  statute  of 
limitations,  the  statute  on  this  subject  being  limited  to  other 
defects  in  the  title.6 

Where  the  contract  simply  requires  the  vendor  to  furnish 
a  good  title,  or  a  valid  title,  then  a  title  derived  by  adverse 
possession  is  a  sufficient  compliance  with  the  contract.7 

(c)  Contract  Silent  as  to  Sort  of  Title.  Where  the  contract 
is  silent  as  to  the  sort  of  title  vendor  shall  furnish,  he  is 
nevertheless  bound  to  furnish  a  marketable  title  although  not 
necessarily  a  marketable  title  of  record.8 

5.  Bradway  v.  Miller  supra;  Com-  unencumbered'  is  entitled  merely  to 
piled  Laws  1915,  11736-11738.  a  good  and  marketable  title  and  he 

Permitting  registration  of  affida-  cannot  demand  a  title  perfect  upon 

vits    for    purpose    of    establishing  the  record." 

facts   in  relation  to   chain  of  title  "A  marketable  title  is  one  which 

and  make  such  registered  affidavits  is     free     from     encumbrance,    and 

prima   facie   evidence   of  the  facts  which  is  of  a  character  to  assure  to 

therein  cited.  the  vendee  the  quiet  and  peaceable 

Said    the    court    in    Bradway    v.  enjoyment  of  the  property." 

Miller,  supra:    "Such  affidavits  may  "A  title  by  adverse  possession  is 

and  often  do  merely  point  to  evi-  a  marketable  title." 

dence  which  would  if  not  disputed  7.  Dwight  v.  Cutler,  3  Mich.  567. 

support  a  decree  quieting  the  title."  Holding  that  where  an  oral  agree- 

6.  Gates  on  Real  Property,  Sec.  ment  to  purchase  land  was  per 
gQg  formed  by  the  purchaser  and  was 

Barnard  v.  Brown,  112  Mich.  452  silent  as  to  the  sort  of  title  to  be 

—in  which  the  court  used  the  fol-  furnished,  the  vendee  was  entitled 

lowing  language:  *°  a  marketable  title  and  was  justi- 

"A  purchaser  under  a  land  con-  fied  in  refusing  a  deed  which  did 

tract  which  requires  the  vendor  to  not  contain  the  usual  covenants  of 

execute  and  deliver  a  good  and  suf-  warranty. 

ficient  warranty  deed  of  land,   'so         8.  Dikeman   v.    Arnold,   71    Mich, 

as  to  convey  the  same  in  fee,  and  656,    40    N.    W.     Holding    that    a 


122  THE  LAW  OF  LAND  CONTRACTS  [§  64 

§  64.  Clouds  on  the  Title — Definition. — A  cloud  on  the  title 
is  an  outstanding  claim  or  encumbrance  which  if  valid  would 
affect  or  impair  the  title  of  the  owner  of  a  particular  estate, 
and  which  apparently  and  on  its  face  has  that  effect,  but  which 
can  be  shown  by  extrinsic  proof  to  be  invalid  or  inapplicable 
to  the  estate  in  question.9 

The  cloud  upon  the  title  must  constitute  an  apparent  encum- 
brance upon  it,  or  an  apparent  defect  in  it,  and  something  that 
shows  prima  facie  some  right  of  a  third  party  either  to  the 
whole  or  some  interest  in  it.10 

Any  instrument  which  shows  by  its  terms  to  be  a  conveyance 
from  the  original  source  of  title  to  an  adverse  claimant  creates 
a  cloud  upon  title,  if  extrinsic  evidence  is  needed  to  show  the 
invalidity  of  the  instrument.11 

Another  title  of  a  nature  rendering  it  questionable  whether 
it  is  not  prima  facie  a  better  title  than  that  of  plaintiff  con- 
stitutes a  cloud  on  his  title.12 

A  cloud,  such  as  equity  will  undertake  to  remove,  is  the 
semblance  of  a  title,  or  the  claim  of  an  interest  in  lands  appear- 
ing in  some  legal  form,  but  which  is  in  fact  unfounded,  and 
which  it  would  be  inequitable  to  enforce.13 

Where  the  owner  of  cutting  stone  rights  claimed  the  right 
to  have  tracks  out  on  the  land,  to  be  used  for  shipment  of  his 
freight,  is  the  claim  of  an  easement  in  the  land  and  a  cloud  on 
the  title  of  its  owner.14 

The  owner  of  property  whose  title  is  clouded  by  the  record- 
ing of  an  instrument  may  maintain  a  suit  to  have  the  record 

vendor  has  an  undoubted  right  to  9.  11  C.  J.  920. 

a   good   title    and    to   a   deed   with  iq   Whitney    v.    Port    Huron,    88 

proper  covenant  of  warranty.  Mich.    268;    Detroit   v.    Martin,    34 

See  also  the  following  decisions  Mich.   170. 

supporting    the   text:      Develan    v.  n    stoddard  v.  prescott,  58  Mich. 

Duncan,  49  N.  Y.  485;   Jefferies  v.  542 


12.  Eaton  v.  Trowbridge,  38  Mich. 
454. 


Jefferies,  117  Mass.  184;   Middleton 

v.  Thompson,  163  Pa.  112;   Hamlin 

v.   Schulte,   34    Minn.   447;    Pett  v. 

Sherwood,   43   Minn.  447;    Gauthier  13.  Head  v.  Fordyce,  17  Cal.  149 

v.    West,    45    Minn.    192;    Davis    v.  14.  Oman    v.    Bedford,    134    Fed. 

Henderson,  17  Wis.  103.  64. 


§65] 


CORRECTING   DEFECTS    IN    THE   TITLE  123 


cancelled  although  the  instrument  was  not  entitled  to  go  on 

record.16 

A  deed  executed  by  a  married  woman,  without  being 
acknowledged  by  her  in  the  manner  prescribed  by  law  consti- 
tutes a  cloud  on  the  title  which  equity  will  take  cognizance  of.16 

Where  it  is  necessary  to  have  legal  acumen  to  discover  the 
defect  in  a  deed,  it  constitutes  a  cloud  on  title  which  a  court  of 
equity  will  remove.17 

A  deed  by  one  who  has  only  a  contingent  remainder,  which 
afterwards  became  extinct,  cast  a  cloud  upon  the  title.18 

An  outstanding  lease  constitutes  a  cloud  on  the  title,  where, 
although  originally  valid,  proof  of  extrinsic  evidence  must  be 
introduced  to  show  that  it  has  become  functus  officio  by  reason 
of  a  violation  of  its  condition.19 

A  certificate  of  sale  of  land  under  execution  will  be  removed 
as  a  cloud  on  title,  where  it  is  prima  facie  valid.20 

When  a  tax  is  made  a  lien  on  the  premises  assessed,  if  illegal, 
it  constitutes  a  cloud  which  equity  will  remove.21 

Where  a  judgment  creditor  who  had  caused  the  equitable 
interest  of  his  debtor  in  land  to  be  sold  on  execution,  neglected 
for  over  a  year  to  take  proceedings  to  ascertain  the  interest 
of  the  debtor  a  bill  was  sustained  to  vacate  the  levy  and  sale,22 
and  such  a  bill  may  be  maintained  by  the  legal  owner.28 

§  65.  Discharge  of  Mortgages  of  Record  by  Petition. — In 

cases  where  the  title  to  real  estate  is  clouded  by  long  standing 
mortgages  which  have  either  been  paid  or  more  than  15  years 
have  elapsed  since  the  last  payment  was  made  on  the  debt  se 
cured  by  the  mortgage,  and  no  suit  or  proceeding  has  been  com- 
menced to  foreclosure  such  mortgage,  the  statute  24  affords  a 

15.  Walter  v.  Hartwig,  106  Ind.  21.  Frost  v.  Leatherman,  55  Mich. 
123;  6  N.  E.  5.  33;   Thomas  v.  Cain,  35  Mich.  155; 

16.  Brooks  v.  Kearns,  86  111.  547  Scofield   v.   Lansing,   17   Mich.   437. 

17.  Merchants  Bank  v.  Evans,  51  22.  Gordon  v.  Twp.  of  Burleigh, 
Mo    335  153  Mich.  493;   Krenze  v.  Soloman. 

18.  Dickerson  v.  Dickerson  (Mo.),      126  Mich-  29°" 

110  S.  W.  760.  23-  Edsell  v.  Nevins,  80  Mich.  146. 

19.  Pendhill  v.  Union  Min.  Co.,  64  24.  There  are  two  statutes  au- 
Mich.  172.  thorizing  proceedings  of  this  char- 

20.  Woodworth  v.  Garton,  46  acter.  Sec.  12715  Compiled  Laws 
Mich.    324.  1915,  which  it  is  believed  supersedes 


124 


THE  LAW  OF  LAND  CONTRACTS 


[§65 


Sec.  11746  Compiled  Laws.  Both 
sections  are  identical.  Sec.  12715 
reads  as  follows: 

"When  a  recorded  mortgage  on 
lands  or  property  has  been  paid 
and  satisfied,  or  when  fifteen  years 
have  elapsed  since  the  debt  se- 
cured by  such  mortgage  became 
due  and  payable,  or  since  the  last 
payment  made  thereon,  and  no  suit 
or  proceedings  have  been  com- 
menced to  collect  the  same,  the 
owner  of  such  land  or  property  may 
present  a  petition  to  the  Circuit 
Court  for  the  county  in  which  such 
land  or  property  so  encumbered  is 
wholly  or  in  part  situated,  duly 
verified  by  the  oath  of  the  peti- 
tioner, or  by  some  one  in  his  be- 
half, which  shall  state  the  names 
of  the  mortgagor  and  mortgagee, 
the  date  of  the  mortgage,  and  the 
liber  and  page  of  the  record  there- 
of, the  facts  in  regard  to  payment 
of  the  debt  thereby  secured,  or  the 
non-commencement  of  such  suit  or 
proceeding  within  said  fifteen 
years,  and  further  that  the  pres- 
ent residence  or  whereabouts  of 
the  mortgagee  (or  his  assignee,  if 
the  mortgage  shall  have  been  as- 
signed), is  unknown  to  the  peti- 
tioner and  that  the  petitioner  has 
been  unable  to  ascertain  the  same 
after  diligent  search  and  inquiry; 
or,  if  such  be  the  fact,  that  the 
mortgagee  or  assignee  is  deceased, 
and  that  three  months  have  elapsed 
since  his  death,  and  that  the  names 
and  residence  of  the  legal  repre- 
sentative, if  any  there  are,  of  the 
mortgagee  or  assignee,  are  un- 
known to  the  petitioner,  and  the 
he  was  unable  to  ascertain  the  same 
after  diligent  search  and  inquiry; 
or  when  such  mortgagee  is  a  trus- 
tee merely  and  without  interest 
therein,  that  he  does  not  reside  in 


the  State  of  Michigan  or  is  dead; 
'  and    such    petition    shall    conclude 
with  a  prayer  that  an  order  of  the 
court    may    be    made    discharging 
said  mortgage  and  declaring  it  fully 
paid  and  satisfied.     Upon  the  pres- 
entation of  such  petition,  said  court 
may    proceed    to    hear    and    deter- 
mine the  truth  of  the  matters  there- 
in stated,  and  if  it  shall  be  made 
satisfactorily  to  appear  to  the  court, 
either    by    the    production    in    evi- 
dence of  the  original  mortgage  or 
of  the   bond   or  bonds   or   promis- 
sory notes,  to  secure  the  payment 
of  which  such  mortgage  was  given, 
or    by    any    other    competent    evi- 
dence,   that   the    debt   secured    by 
such  mortgage  has  been  fully  paid, 
both  principal  and  interest  thereof; 
or  if  it  shall  be  made  to  appear  to 
the    court    by    competent    evidence 
that  said  mortgaged  debt  has  been 
past  due  for  15  years,  or  that  15 
years  have  elapsed  since  the  last 
payment  was   made   on  such  debt, 
and  that  no  suit  or  proceeding  has 
been  commenced  to  foreclose  such 
mortgage,  the  court  shall  make  a 
certificate    to    that    effect    setting 
forth  therein  the  names  of  the  wit- 
nesses and  the  nature  of  the  evi- 
dence  by   which   such   facts   have 
been  made  to  appear,  and  a  minute 
thereof    shall    be    entered    in    the 
journal  of  said  court,  and  such  cer- 
tificate signed  by  the  judge  of  said 
court    and    attested    by    the    clerk 
thereof  under  the  seal  of  said  court, 
shall  be  delivered  to  the  said  pe- 
titioner and  may   be   recorded   in 
the  office  of  the  register  of  deeds 
for  the  county  or  counties  in  which 
such  mortgage  shall  be  of  record,  in 
like  manner  and  with  like  effect  in 
all  respects  as  if  it  were  a  formal 
discharge    of    said    mortgage    duly 
executed  by  the  mortgagee. 


§65] 


CORRECTING   DEFECTS    IN    THE   TITLE  125 


convenient  and  inexpensive  method  of  discharging  such  liens 
of  record.  In  such  cases  the  owner  of  the  land  may  file  a 
petition  to  the  Circuit  Court  of  the  judicial  district  where  the 
mortgage  is  registered,  setting  up  such  facts  under  oath.  The 
essentials  of  the  petition  are: 

(a)  It  must  be  made  by  the  owner  of  such  land. 

(b)  It  must  be  verified  by  such  owner  or  some  one  in  his 
behalf. 

(c)  It  shall  state  the  names  of  the  mortgagor  and  mort- 
gagee, date  of  the  mortgage,  liber  and  page  of  the  record 
thereof  where  recorded,  the  facts  in  regard  to  the  payment  of 
the  debt  secured  or  the  non-commencement  of  such  suit  or 
proceeding  within  fifteen  years. 

(d)  That  the  present  residence  or  whereabouts  of  the  mort- 
gagee or  his  assigns,  if  the  mortgage  shall  have  been  assigned, 
is  unknown  to  the  petitioner  and  that  the  petitioner  has  been 
unable  to  ascertain  same  after  diligent  search  and  inquiry,  or 
if  such  be  the  fact,  that  the  mortgagee  or  assignee  is  deoeased, 
and  that  three  months  have  elapsed  since  his  death,  and  that 
the  names  and  residences  of  the  legal  representatives,  if  any 
there  are,  of  the  mortgagee  or  assignee,  are  unknown  to  the 
petitioner,  and  that  he  has  been  unable  to  ascertain  same  after 
diligent  search  and  inquiry. 

(e)  Sucii  petition  shall  conclude  with  a  prayer  that  an  order 
of  the  court  may  be  made  discharging  such  mortgage,  and 
declaring  it  fully  paid  and  satisfied. 

Upon  the  presentation  of  such  petition,  the  court  may  pro- 
ceed to  hear  and  determine  the  truth  of  the  matters  therein 
stated  without  any  notice  or  any  process  of  any  kind. 

Evidence  Required  to  Discharge  the  Mortgage.  If  the  peti- 
tioner is  able  to  produce  in  evidence  the  original  mortgage  or 
bond,  or  promissory  notes  to  secure  the  payment  of  which  the 
mortgage  was  given,  he  should  do  so,  or  any  other  competent 
evidence  that  payment  has  been  made  will  be  received  by  the 
court.  If  the  petitioner  is  unable  to  show  that  the  mortgage 
has  been  paid,  it  will  be  sufficient  to  establish  that  said  mort- 
gage debt  has  been  due  for  15  years  or  that  15  years  have 
elapsed  snice  the  last  payment  was  made  on  such  debt,  and 
that  no  suit  or  proceeding  has  been  made  to  foreclose  such 
mortgage. 


126  THE  LAW  OF  LAND  CONTRACTS  [§  65 

Upon  the  reception  of  such  evidence,  the  court  shall  make  a 
certificate  to  that  effect  setting  forth  therein  that  names  of  the 
witnesses  and  the  nature  of  the  evidence  by  which  such  facts 
have  been  made  to  appear,  and  a  minute  thereof  shall  be  en- 
tered in  the  journal  of  said  court,  and  such  certificate  signed 
by  the  judge  of  said  court  and  attested  by  the  clerk  thereof, 
under  the  seal  of  such  court,  shall  be  delivered  to  said  petitioner 
and  may  be  recorded  in  the  office  of  the  register  of  deeds  for 
the  county  or  counties  in  which  such  mortgage  shall  be  of 
record  with  like  effect  in  all  respects,  as  if  it  were  a  formal 
discharge  of  said  mortgage  duly  executed  by  the  mortgagee. 

§  66.  Defects  of  Record,  Remediable  Affidavits — Forms. — 

Where  the  defect  in  the  record  title  is  one  which  can  be 
remedied  by  recording  an  affidavit  setting  up  the  facts,  such  a 
course  may  be  pursued  to  the  advantage  of  all  parties  con- 
cerned. In  drafting  such  affidavits  averments  should  be  in- 
cluded stating  who  the  deponent  is,  what  his  opportunities  for 
knowing  the  facts  have  been,  the  length  of  his  acquaintance 
with  the  individual  in  regard  to  whom  the  defect  has  arisen. 
The  following  form  may  be  used  to  correct  several  different 
classes  of  defects  which  frequently  appear  on  the  record. 

State  of  Michigan,  1 

County  of J 

John  Doe,  being  first  duly  sworn,  deposes  and  states  that  the 
is years  of  age ;  that  his  occupation  is  (here  state  occu- 
pation of  deponent) ;  that  he  has  been  a  resident  of  said  county 

and  state  for  a  period  of years ;  that  this  deponent  was 

well  acquainted  with  Richard  Roe,  who,  as  vendor,  executed  a 

deed  on  the day  of to  William  Smith,  as 

vendee,  to  the  following  described  real  estate,  to-wit:  (here 
insert  legal  description  of  real  estate),  which  deed  is  recorded 

in  liber ,  page in  the  office  of  the  register 

of  deeds  of  said  county. 

(a)  (Where  purpose  of  the  affidavit  is  to  cure  a  defect  re- 
specting the  marital  status  of  the  vendor.) 

That  at  the  time  of  the  execution  and  delivery  of  said  deed, 
the  said  Richard  Roe  was  an  unmarried  man. 


§  67]  CORRECTING    DEFECTS    IN    THE   TITLE  127 

(b)  (If  the  affidavit  is  sought  to  cure  defects  arising  from 
the  use  of  initials,  misspelled  or  abbreviated  names,  in  the  place 
of  paragraph  A  substitute  as  follows:) 

That  the  true  and  correct  name  of  the  said  vendor  in  such 
conveyance  was  Richard  Roe,  but  that  the  said  Richard  Roe 
throughout  his  lifetime  was  commonly  called  Dick  Roe,  and  to 
the  personal  knowledge  of  this  deponent,  on  many  occasions 
executed  contracts,  deeds,  and  other  instruments  signing  his 
name  thereto  as  Dick  Roe,  but  that  the  said  Dick  Roe  who 
executed  said  conveyance  as  vendor  was  the  same  identical 
person  as  Richard  Roe  who  was  the  owner  of  such  property  of 
record  on  the  date  such  conveyance  was  made. 

(c)  (Where  a  deed  conveys  property  to  a  husband  and  wife 
as  vendees  followed  by  conveyance  from  only  one,  one  of  such 
vendees  having  died  in  the  meantime  without  anything  appear- 
ing of  record  to  show  this  fact.) 

Substitute  the  following  clause  for  clause  (a) : 
That  since  the  said  Richard  Roe,  and  Mary  Roe,  his  wife, 
acquired  title  to  the  above  described  property,  to- wit:  on  the 

day  of the  said  Mary  Roe  died  at  the  City 

of County  of ,  and  that  by  reason  of  the 

death  of  Mary  Roe,  the  title  to  said  real  estate  vested  in- 
dividually in  Richard  Roe,  her  husband. 

§  67.  Form  of  Petition  for  Discharge  of  Mortgage. — State  of 
Michigan,  in  the  Circuit  Court  for  the  County  of 

In  the  matter  of  the  Petition  of 
John  Doe  for  the  Discharge  of  a 
Certain  Mortgage  of  Record. 

To  the  Circuit  Court  for  the  County  of 

Your  petitioner,  John  Doe,  respectfully  shows  unto  this 
Honorable  Court  as  follows: 

1.  That  your  petitioner  is  the  owner  of  the  following  de- 
scribed real  estate:  (here  insert  complete  legal  description  of 
the  real  estate) . 

2.  That  on  the -day  of ,  one  John  Jones 

was  the  owner  of  the  above  described  property,  and  that  on 
said  date,  he,  and  his  said  wife,  Mary  Jones,  made  and  executed 


128  THE  LAW  0F  LAND  CONTRACTS  [§  67 

to  William  Smith,  their  certain  mortgage  for  the  sum  of 

$ upon  said  property,  which  said  mortgage  was  on 

the day  of recorded  in  liber of 

mortgages  of  the  register  of  deeds  of county,  page 

which  said  mortgage  is  undischarged  of  record. 

3.  That  more  than  15  years  have  elapsed  since  said  mort- 
gage became  due  and  payable  and  the  last  payment  was  made 
thereon  and  that  no  suit  or  proceedings  have  been  commenced 
to  foreclose  such  mortgage. 

4.  That  the  present  residence  or  whereabouts  of  the  mort- 
gagee of  said  mortgage  is  unknown  to  your  petitioner  and  that 
your  petitioner  has  been  unable  to  ascertain  the  same,  after 
diligent  search  and  inquiry. 

WHEREFORE  your  petitioner  prays  that  an  order  of  the 
court  may  be  made  discharging  the  said  mortgage  and  declar- 
ing it  fully  paid  and  satisfied  in  accordance  with  Section  12715 
of  the  Compiled  Laws  of  the  State  of  Michigan. 

State  of  Michigan,  1 
County  of  Wayne,  J 

John  Doe,  being  first  duly  sworn,  deposes  and  states  that  he 
has  read  the  foregoing  petition  by  him  subscribed  and  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  the  matters 
therein  stated  to  be  upon  information,  and  belief,  and  as  to 
those  matters  he  believes  it  to  be  true. 


Notary  Public,  Wayne  County,  Mich. 
My  commission  expires 


§  68.  Form  of  Certificate  Discharging  Mortgage. — State  of 
Michigan,  in  the  Circuit  Court  for  the  County  of 

In  the  matter  of  the  Petition  of 
John  Doe  for  the  Discharge  of  a 
certain  Mortgage  of  Record. 

At  a  session  of  said  court  held  in  the..  county  build- 
ing on  the day  of ,  A.  D 

Present :    Honorable Circuit  Judge. 

This  cause  having  been  brought  on  to  be  heard  upon  the 
petition  of  John  Doe  filed  herein  praying  for  the  discharge  of  a 


8  69]  CORRECTING    DEFECTS    IN    THE   TITLE  129 

certain  mortgage  made  and  executed  by  John  Doe  and  Mary 

Doe,  his  wife,  to on  the day  of 

recorded  in  liber of  mortgages  on  page 

and  the  court  having  heard  the  evidence  and  the  arguments  of 
counsel,  does  by  these  presents  hereby  certify: 

1st.  That  it  satisfactorily  appears  to  this  court  by  the  testi- 
mony of  such  petitioner  produced  in  said  cause,  that  he  is  the 
owner  of  the  property  described  in  and  covered  by  said 
mortgage. 

2nd.  That  said  mortgage  is  undischarged  of  record  and 
more  than  15  years  have  passed  since  said  mortgage  debt  was 
due  and  that  more  than  15  years  have  elapsed  since  the  last 
payment  was  made  upon  said  debt,  and  that  no  suit  or  proceed- 
ing has  been  commenced  to  foreclose  said  mortgage,  and  that 
under  and  by  virtue  of  section  12715  of  the  Compiled  Laws  of 
the  State  of  Michigan  of  1915,  said  petitioner  is  entitled  to 
have  said  mortgage  satisfied  and  discharged  of  record,  and 
that  the  same  is  hereby  satisfied  and  discharged  of  record. 

3rd.  That  this  certificate  may  be  recorded  in  the  office  of  the 

register  of  deeds  of county  in  like  manner  and  with 

like  effect  in  all  respects  as  if  it  were  a  formal  discharge  of 
said  mortgage  duly  executed  by  the  mortgagee  above  named. 


Circuit  Judge. 
Attest : 


Clerk  of  the Circuit  Court. 

§  69.  Defects  in  Title  Curable  by  Affidavits.— Where  the  de- 
fect in  the  chain  of  title  relates  to  the  date  of  birth  of  some 
heir,  the  question  as  to  whether  or  not  a  vendor  was  married  on 
the  date  of  a  given  conveyance,  the  question  as  to  whether  an 
individual  is  living  or  dead,  the  identity  of  names  or  the  resi- 
dence of  parties  or  the  relationship  of  such  parties  named  in 
deeds,  wills,  mortgages,  and  other  instruments  affecting  real 
estate  affidavits  may  be  executed  and  recorded  by  those  show- 
ing knowledge  of  the  facts,  which  affidavits  may,  in  many 


130  THE  LAW  0F  LAND  CONTRACTS  [§  69 

cases,  serve  to  cure  the  defect  in  the  record.  There  is  no 
statute,  however,  authorizing  the  registration  of  affidavits 
setting  up  the  fact  of  adverse  possession,  and  the  usual  and 
only  satisfactory  way  of  establishing  title  of  record  by  adverse 
possession  is  through  an  action  to  quiet  title.26  While  the 
statute  does  not  permit  the  registration  of  affidavits  respecting 
the  adverse  possession  of  property,  if  the  averments  in  the 
affidavit  relate  only  to  the  question  of  adverse  possession, 
nevertheless  it  is  quite  a  common  practice  for  members  of  the 
profession  to  draft  an  affidavit  correcting  some  defect  in  the 
chain  of  title  relating  to  the  date  of  birth  of  some  heir,  the 
marital  status  of  a  particular  vendor,  and  in  such  an  affidavit 
which  the  statute  permits  to  be  recorded,  the  necessary  aver- 
ments are  included  relating  to  the  adverse  possession  of  the 
property.  In  this  way,  the  fact  of  adverse  possession  can  be 
placed  on  the  record. 

§  70.  Title  by  Adverse  Possession. — While  it  is  well  settled 
that  where  the  contract  does  not  specifically  require  the  vendor 
to  furnish  a  marketable  title  of  record  or  as  shown  by  the 
abstract,  a  title  by  adverse  possession  is  sufficient.26    Neverthe- 

25.  Compiled  Laws  of  Michigan,  Such  affidavits,  whether  recorded 

1915,  Sec.  11736  to  11738  inclusive:  before  or  after  the  passage  of  this 

Affidavits  as  to  the  birth,  mar-  act,  may  be  received  in  evidence  in 
riage  death,  name,  residence,  iden-  any  civil  cause,  in  all  courts  of  this 
tity,  and  relationship  of  parties  state  and  by  all  boards  or  officers 
named  in  deeds,  wills,  mortgages  of  the  state  in  all  suits  or  proceed- 
and  other  instruments  affecting  real  ings  affecting  such  real  estate  and 
estate  may  be  recorded  in  the  office  shall  be  prima  facie  evidence  of 
of  the  register  of  deeds  of  the  the  facts  and  circumstances  there- 
county   where   said   real   estate   is  in  contained. 

situate.  26.  Dupont  v.  Starring,  42  Mich. 

It  shall  be  the  duty  of  the  regis-  492;  Bunce  v  Bidwell?  43  Mich.  M2\ 

ter  of  deeds  for  the  county  where  Bernard  v>  Brown,  112   Mich.  455. 

such  affidavit  is  offered  for  record  ^  0,Connor  v_  Higgins,  113  N.  Y. 


521,   after  describing   the   features 
of    adverse    possession    shown    by 


to  receive  the  same  and  cause  the 

same  to  be  recorded   in  the  same 

manner    that    deeds    are    recorded. 

The  register  of  deeds  shall  collect      th*  Plaintiff>  the  court  8aId: 

the  same  fees  for  recording  such  "There  is  no  proof  nor  pretense 

affidavit  as  are  provided  by  law  for      of  any  other  title  to  the  property, 

recording  deeds.  lying  either  in  grant  or  in  claim; 


§70] 


CORRECTING    DEFECTS    IN    THE   TITLE 


131 


less,  such  a  title  should  be  accepted  by  the  vendee  with  a  great 
deal  of  caution,  as  by  statute,  it  is  provided  that  a  minor,  an 
innocent  person,  or  one  imprisoned  or  any  person  claiming 
under  or  through  persons  under  such  legal  disabilities  afore- 
said, have  five  years  in  which  to  bring  an  action  for  the  re- 
covery of  real  estate  after  such  legal  disabilities  have  been 
removed.     Another  section  of  the  statute  27  provides  that  if 


nor  does  anything  appear  to  dis- 
turb the  conclusiveness  of  the  pre- 
sumption of  a  valid  grant  which 
arises  from  an  exclusive  and  unin- 
terrupted possession  of  the  prop- 
erty under  a  claim  of  title  founded 
on  a  conveyance,  for  a  period  ex- 
tending far  beyond  the  length  of 
time  mentioned  in  the  statute  of 
limitations.  Such  a  presumption 
will  always  displace  objections 
based  on  flaws  in  the  proceedings 
in  which  the  title  has  had  its 
source,  and  protect  the  title  from 
being  injured  or  affected  by  their 
disclosure." 

In  Forma'n  v.  Wolf,  29  Alt.  837, 
the  Supreme  Court  of  Maryland 
says: 

"It  appears  from  the  record  that 
the  appellee  has  been  in  the  ex- 
clusive possession  of  the  property 
in  dispute  for  over  20  years,  and, 
even  if  the  objection  urged  by  the 
appellant  was  tenable,  the  title  of 
the  appellee  would  be  a  good  and 
marketable  one  by  adverse  posses- 
sion, under  the  statute  of  limi- 
tations. It  is  well  settled  that  a 
title  by  adverse  possession  for  over 
20  years,  where  the  only  persons 
who  could  claim  were  all  under  no 
disability,  is  marketable,  and  such 
as  a  court  of  equity  will  compel  a 
purchaser  to  take." 

In  Tewksbury  v.  Howard,  138  Ind. 
110,  it  was  claimed  that  a  title  ob- 
tained by  adverse  possession  is  not 


a   marketable   one.     In    answer   to 
this,  it  was  said  by  the  court: 

"The  principal  argument  is  that 
the  decree  quieting  title  came  too 
late  to  support  this  suit,  but  inci- 
dentally it  is  said  that  a  title  by 
adverse  possession  is  not  a  mar- 
ketable title.  If  a  marketable  title, 
it  is  manifest  that  the  decree  so  al- 
leged was  only  in  confirmation  of 
the  title  so  held  and  that  the  tardi- 
ness in  procuring  it  would  not  de- 
feat the  action.  Title  by  adverse 
possession  is  as  high  as  any  known 
to  the  law.  *  *  *  A  marketa- 
ble title  cannot  be  said  to  be  more." 

In  the  case  of  Elder  v.  McClaskey, 
17  C.  C.  A.  251,  70  Fed.  529,  in- 
volved a  title  by  adverse  posses- 
sion under  the  Ohio  statute.  Of 
that  Mr.  Justice  Taft  said: 

"Under  the  construction  put  upon 
this  statute  by  the  Supreme  Court 
of  Ohio,  an  open,  notorious,  exclu- 
sive, and  adverse  possession  of  land 
for  21  years,  with  or  without  color 
of  title,  whether  continuous  in  the 
first  possessor  or  tolled  in  persons 
claiming  under  him,  and  whether 
with  or  without  knowledge  of  the 
existence  of  a  better  title,  confers 
upon  the  original  possessor,  or  those 
claiming  under  him,  an  indefeasible 
title  in  fee";  citing  Paine  v.  Skin- 
ner, 8  Ohio  159,  and  several  other 
Ohio  cases. 

27.  If  at  the  time  when  any  right 
of  entry,  or  of  action,  as  aforesaid, 


132 


THE  LAW  OF  LAND  CONTRACTS 


[§70 


the  person  under  the  legal  disabilities  aforesaid  shall  die  dur- 
ing the  continuance  of  the  same  without  the  rights  of  such 
person  having  been  adjudicated,  his  heirs,  or  anyone  claiming 
under  him,  shall  have  five  years  from  the  date  of  his  death  to 
bring  such  action  even  though  the  statute  of  limitations  has 
expired. 

Another  principle  which  should  be  borne  in  mind  in  relation 
to  titles  by  adverse  possession  is  that  actual  possession  by  a 
tenant  in  common,  will  be  presumed  to  be  permissive  and  not 
adverse  to  that  of  his  co-tenants.88  Illustrative  of  the  fore- 
going, it  might  happen  that  a  vendor  would  occupy  property 
for  the  full  period  of  the  statute  of  limitations,  namely,  15 
years,  and  it  might  still  be  possible  for  the  rights  of  persons 
under  such  legal  disabilities  to  be  asserted  against  the  property 
for  many  years  thereafter.     But  see  Footnote  29. 

The  writer  recalls  of  one  instance  where  a  suit  was  brought 
to  foreclose  a  mortgage  and  successfully  maintained  41  years 
after  the  execution  and  registration  of  the  mortgage  where 
payments  had  been  made  and  the  instrument  had  thus  been 
kept  in  force. 

In  another  instance,  tried  before  one  of  our  lower  courts, 
title  was  successfully  asserted  on  behalf  of  a  person  under 
legal  disability  which  had  been  occupied  by  the  defendant  for 
a  period  of  37  years. 


shall  first  accrue  or  have  accrued, 
the  person  entitled  to  such  entry 
or  action  shall  be  or  shall  have 
been,  within  the  age  of  twenty-one 
years,  insane,  or  imprisoned  such 
person,  or  any  one  claiming  from, 
by  or  under  him,  may  make  such 
entry,  or  bring  such  action  at  any 
time  within  five  years  after  such 
disability,  shall  be  or  shall  have 
been  removed,  although  the  time 
limited  therefor  in  the  first  section 
of  this  chapter  may  have  expired. 
Compiled  Laws  1915,  Section  12315. 

28.  If  the  person  first  entitled  to 
make  such  entry,  or  bring  such  ac- 
tion,  shall  die,  or  shall  have  died 


during  the  continuance  of  any  of 
the  disabilities  mentioned  in  the 
preceding  section,  and  no  deter- 
mination or  judgment  shall  have 
been  had  of,  or  upon  the  title,  right 
or  action,  which  accrued  to  him, 
the  entry  may  be  made,  or  action 
brought,  by  his  heirs,  or  any  one 
claiming  under  him,  at  any  time 
within  five  years  after  his  death, 
although  the  time  limited  therefor 
in  the  first  section  of  this  chapter 
may  have  expired.  Compiled  Laws 
1915,  Section  12316 

29.  Corley  v.  Thompson,  196  Mich 
713. 


§71]  CORRECTING   DEFECTS    IN    THE   TITLE  133 

These  examples  and  many  others  which  could  be  cited  indi- 
cate the  necessity  on  the  part  of  the  vendee  of  requiring  con- 
vincing evidence  before  accepting  a  title  grounded  upon  adverse 
possession,  that  no  persons  under  legal  disability  are  in  posi- 
tion to  assert  claims  against  the  property.  The  better  practice 
where  there  is  any  doubt  whatever  involved  would  be  to  require 
the  vendor  to  quiet  the  title  before  accepting  same. 

§  71.  Adverse  Possession  When  Five- Year  Period  Sufficient 
to  Vest  Title. — In  a  certain  class  of  cases  by  reason  of  a  special 
statute  of  limitation,  adverse  possession  of  real  estate  for  a 
period  of  five  years,  will  vest  in  the  occupant  the  title  to  the 
real  estate.  In  such  cases,  the  general  statute  of  limitations 
has  no  application.30  Those  cases  where  the  five-year  statute 
applies  are: 

Where  defendant  claims  title  by  or  through  some  deed  made 
upon  a  sale  by — 

(a)  An  executor  or  administrator. 

(b)  A  guardian  or  testamentary  trustee. 

(c)  A  sheriff  or  other  ministrial  officer  under  an  order, 
judgment,  or  decree,  or  process  of  the  court. 

(d)  By  sheriff  upon  a  mortgage  foreclosure  sale. 

(e)  Through  a  devise  in  a  will  which  has  been  probated  in 
this  state  for  fifteen  years,  and  no  action  has  been  brought  in  a 
court  of  chancery  to  set  same  aside  within  that  time. 

30.  "Within  five  years,  where  the  test    the    validity    of   such    devise: 

defendant  claims  title  to  the  land  Provided  that  in  cases  where  such 

in    question,    by    or    through    some  fifteen-year     period     has     already 

deed  made  upon  a  sale  thereof  by  elapsed  such  rights  of  entry  or  ac- 

an    executor,    administrator,    guar-  tions    shall    be    barred    after    two 

dian,  or  testamentary  trustee,  or  by  years  from  the  passage  hereof,  or 

a  sheriff,  or  other  proper  ministeral  in  case  such  right  has  not  accrued, 

officer,  under  the  order,  judgment,  then  after  two  years  from  the  ac- 

decree  or  process  of  a  court,  or  le-  cruing    thereof."     Compiled    Laws 

gal  tribunal  of  competent  jurisdic-  1915,  Section  12311. 
tion    within    this    state,    or    by    a         Pence    v.    Miller,    140    Mich    205, 

sheriff    upon    a    mortgage    foreclo-  holding    that    possession    for    five 

sure    sale;    nor    through    a    devise  years  under  a  void  tax  deed  gives 

in  any  will  which  shall  have  been  the  purchaser  title  by  adverse  pos- 

probated   in   this   state    for    fifteen  session,  the  general  statute  of  limi- 

years,  during  which  period  no  suit  tations    having    no    application    to 

in   chancery   has   been   brought   to  such  a  case. 


134  THE  LAW  0F  LAND  CONTRACTS  [§  71 

(f)  By  some  officer  of  the  state  or  of  the  United  States 
authorized  to  make  deeds  upon  the  sale  of  land  for  taxes  as- 
sessed and  levied  within  this  state,  the  limitation  of  the  action 
for  the  recovery  of  the  land  is  ten  years  instead  of  five  years.31 

Where  the  tax  deed  is  void  on  its  face,  the  five-year  limita- 
tion will  not  apply,  as  it  is  then  only  a  nullity.  In  order  that 
the  statute  may  control  the  deed  must  be  prima  facie  evidence 
of  title.32 

The  statute  was  intended  to  compel  parties  who  would  con- 
test judicial  sales  for  irregularities  or  defects  to  do  so  within 
the  period  fixed  by  the  statute,  and  it  is  only  when  the  suit 
brings  into  question  the  validity  of  the  sale  and  the  title  there- 
under, that  the  statute  has  application.33 

Where  the  holder  of  a  tax  deed  obtains  possession  illegally 
through  the  collusion  with  a  tenant,  the  statute  will  not  pro- 
tect him.34 

In  those  cases  whereby  because  of  the  relation  of  the  parties 
it  was  the  duty  of  the  person  who  purchased  the  tax  titles  to 
pay  the  taxes,  his  possession  will  not  be  deemed  to  be  adverse 
to  the  holder  of  the  legal  title.36 

§72.  Adverse  Possession  by  One  Cotenant  Against  An- 
other.— Frequently  questions  involving  the  adverse  possession 
of  real  estate  by  one  cotenant  against  another  are  presented 
to  the  legal  profession.  When  the  ancestor  dies  leaving  several 
heirs-at-law,  they  become  as  to  each  other  cotenants  of  the 
real  estate  left  by  such  ancestor.  The  rule  as  laid  down  by  the 
Michigan  decisions  on  this  question  is  as  follows : 

"The  actual  possession  of  a  tenant  in  common  will  not  be 
presumed  as  adverse  to  that  of  his  cotenants,  and  his  con- 

31.  "Within  ten  years,  where  the      v.    Filer,    31    Mich.    304;     Tull    v. 
defendant  claims  title  under  a  deed      Wright,  37  "Mich  93. 

made  by  some  officer  of  this  state, 

or  of  the  United  States,  authorized 

to    make    deeds    upon    the    sale   of 

lands  for  taxes  assessed  and  levied 

within  this  state."    Compiled  Laws  34-  Williams    v.    Fox,    152    Mich. 

1915,  Section  12311.  217. 

32.  Fitscher  v.   Olsen,   155   Mich.  35.  Marsh  v.  Breen  Iron  Co.,  181 
320,  relating  to  tax  deed.    McVicker      Mich.  222. 


33.  Donovan  v.  Word,  100  Mich. 
605;  Showers  v.  Robinson,  43  Mich. 
502. 


§  72]  CORRECTING    DEFECTS    IN    THE   TITLE  135 

structive  possession  in  like  manner  will  be  limited  to  his  in- 
terest as  tenant  in  common.  The  possession  of  one  tenant  in 
common,  unless  under  a  claim  of  exclusive  right  will  not  affect 
the  rights  of  the  cotenants.  Such  exclusive  claims  and  denial 
of  their  rights  should  be  clear  and  unambiguous  and  brought 
home  to  the  knowledge  of  the  cotenants  either  by  express  notice 
or  by  implication.  And  if  the  latter,  all  doubt  growing  out  of 
the  nature  and  character  thereof  should  be  against  an  ouster. 
The  presumption  should  be  that  the  tenant  in  possession  re- 
spects and  recognizes  the  rights  of  his  cotenants,  until  the  con- 
trary clearly  appears;  that  the  possession  is  rightful,  and  not 
to  the  exclusion  of  others  having  equal  rights."  8e 

"The  continuous  possession  of  a  cotenant  may,  however,  be 
of  such  a  hostile  character  as  to  convert  it  into  an  ouster." 

One  noted  text  writer  has  laid  down  the  rule  to  be  as 
follows : 

"If  one  tenant  in  common  has  been  in  possession  a  great 
number  of  years,  without  any  accounting  to  his  fellow  com- 
moners, this  is  proper  evidence  from  which  the  jury  may  infer 
an  adverse  possession.  In  some  instances,  such  possession  has 
been  regarded  as  raising  a  presumption  of  law  which  the  jury 
is  not  at  liberty  to  resist.  An  exclusive  possession  under  a 
claim  of  title  for  40  years,  while  the  other  cotenants  resided 
in  the  same  county  and  failed  to  assert  any  claim  to  their 
property,  warrants  the  presumption  of  an  actual  ouster."  87 

36.  Campau  v.  Campau.  44  Mich.  gin  to  run  until  the  cotenant  has 
31;  Corby  v.  Thompson,  196  Mich.  had  notice  or  knowledge  of  the 
706.  ouster.     3   Shars.   &  B.  Lead.   Cas. 

37.  Freeman  Cotenancy  &  Parti-  Real  Prop.,  p.  121.  But  it  is 
tion,  Sec.  242.  "Many  of  the  auhtori-  not  necessary  that  actual  notice 
ties  hold  that  an  entry  under  a  con-  be  shown  or  brought  home  to  the 
veyance  which  purports  to  convey  cotenant.  It  is  said  in  Packard  v. 
the  entirety  is  equivalent  to  an  ex-  Johnson,  57  Cal.  180,  that  plaintiff 
press  declaration  on  the  part  of  the  was  ousted  from  the  point  of  time 
grantee  that  he  enters  claiming  the  when  he  became  aware  of  such 
whole  to  himself,  and  is  such  a  claim,  or  (at  the  very  least)  from 
disseizin  as  sets  the  statute  in  mo-  the  time  when,  as  a  prudent  man, 
tion  in  favor  of  the  grantee.  Freem.  reasonably  attentive  to  his  own  in- 
Coten.  No.  224;  11  Am.  &  Eng.  Enc.  terests,  he  ought  to  have  known 
Law,  p.  1114.  Other  authorities  that  his  cotenant  asserted  an  ex 
hold  that  the  statute  does  not  be-  elusive  right  to  the  land.     Which- 


136  THE  LAW  0F  LAND  CONTRACTS  [§  73 

§  73.  Adverse  Possession  Vendee  Against  Vendor. — Under 
the  former  rule  in  force  a  vendee  could  not  acquire  property 
adversely  against  the  vendor,  the  court  in  one  case  stating,88 
"Such  holding  and  occupancy  could  not  in  a  hundred  years 
ripen  into  an  adverse  holding  and  the  complainant  would  be 
equitably  estopped  from  so  claiming." 

This  rule  has  now  been  modified,  however,  so  that  where  the 
vendee  claims  to  be  the  owner  of  said  property,  under  the 
contract  of  purchase,  and  under  and  by  virtue  of  said  claim, 
occupies  same  adversely,  for  a  period  of  twenty  years  after 
the  last  payment  was  due  on  such  contract  or  after  the  last 
payment  was  made  on  such  contract,  he  will  be  permitted  to 
assert  such  title  against  his  vendor.39 

§  74.  Adverse  Possession  of  Vacant,  Wild  and  Unoccupied 
Land. — The  subject  of  adverse  possession  as  applied  to  wild, 
vacant  and  unoccupied  land  is  more  difficult  than  as  applied  to 
occupied  and  improved  lands.  But  the  difference  is  in  the 
nature  of  the  acts  required  by  law  and  the  amount  of  evidence 
necessary  to  prove  adverse  possession.  This  is  caused  by  the 
fact  that  in  the  case  of  unoccupied  and  unimproved  lands,  as 
can  be  plainly  seen,  it  would  require  different  acts  and  plainer 

ever  rule  is  adopted,  the  full  stat-  Ing  the  legal  title  to  the  premisea 
utory  period  has  run  against  com-  shall  be  presumed  to  have  been  in 
plainants,  for  it  must  be  conceded  possession  thereof  within  the  time 
that  before  the  expiration  of  the  limited  by  law  for  bringing  such 
15  years  a  prudent  man,  reasona-  action,  unless  it  shall  appear  that 
bly  attentive  to  his  own  interests,  the  same  has  been  possessed  ad- 
ought  to  have  discovered  that  de-  versely  to  such  legal  title  by  the 
fendants'  grantors  had  asserted  an  defendant  or  by  those  from  or  un- 
exclusive  right  to  his  parcel  of  der  whom  he  claims,  or  that  the 
land."  Fuller  v.  Swensberg,  106  grantee,  or  his  assigns,  in  a  con- 
Mich.  305  (64  N.  W.  463,  58  Am.  St.  tract  of  purchase  have  been  in  pos- 
Rep.  481);  Brigham  v.  Reau,  139  session  claiming  title  by  virtue  of 
Mich.  256  (102  N.  W.  845);  Dubois  said  contract  of  purchase  for  a  pe- 
v.  Campau,  28  Mich.  304.  riod  of  twenty  years  after  the  last 


38.  Jaspa  v.  Martin,  161  Mich. 
336,  cited  in  Rodgers  v.  Beckel, 
172  Mich.  530. 


payment  was  due  on  said  contract 

or  after  the  last  payment  was  made 

on   said   contract.     The   provisions 

of  this  section  shall  not  apply  to 

39.  "In   every   action   for  the   re-      any  contract  of  purchase  which  is 

covery  of  real  estate  or  the  posses-     now  the  subject  of  litigation."  Com- 

sion  thereof,  the  person  establish-      piled  Laws  1915,  Sec.  12314. 


§741 


CORRECTING    DEFECTS    IN    THE   TITLE 


137 


evidence  of  the  same  in  order  to  sufficiently  apprize  the  real 
owner  of  such  claim  of  adverse  possession.  In  the  case  of 
occupied  and  improved  lands,  the  actual  residence  of  the  claim- 
ant and  the  improvements  made  by  him  during  the  statutory 
period  is  plain  evidence  to  the  record  owner  that  he  claims 
adversely.  Actual  residence  on  the  land  is  sufficient,  even  with- 
out cultivation  or  improvement.40  But  it  is  plainly  evident  that 
where  the  claimant  is  not  actually  residing  on  the  lands,  that 
the  nature  and  amount  of  evidence  necessary  to  show  actual, 
continued,  notorious,  distinct  and  hostile  possession  would  be 
very  different  and  much  more  difficult  than  in  the  case  of  oc- 
cupied lands.  To  constitute  adverse  possession  it  is  necessary 
to  show  that  the  acts  of  ownership  were  of  such  character  as 
to  openly  and  publicly  indicate  an  assumed  control  or  use  of 
them  as  is  inconsistent  with  the  owner's  claim  to  the  premises 
in  question.41 


40.  "In  order  to  acquire  title  by 
adverse  possession  as  against  an 
elder  grant,  the  party  asserting 
such  a  title  must  take  actual  physi- 
cal possession  of  all  the  land  which 
he  proposes  to  acquire,  and  hold 
it  adversely,  actually  and  continu- 
ously for  the  full  statutory  period: 
and  the  masting  of  hogs  thereon,  or 
the  ranging  of  cattle,  or  the  con- 
ducting of  a  sugar  camp  will  not 
constitute  such  adverse  possession 
within  the  meaning  of  the  law." 
Courtney  v.  Ashcraft,  105  S.  W.  106, 
31   Ky.    Law    Report    1324. 

"To  maintain  an  actual  adverse 
possession  to  woodland  as  such  it 
is  necessary  that  the  person  enter- 
ing take  actual  possession  by  resi- 
dence or  cultivation  of  a  part  of 
the  tract  to  which  the  woodland  be- 
longed. Actual  possession  may  be 
taken  by  inclosing  and  cultivating 
without  residence,  or  by  residence 
without  cultivation,  under  a  bona 
fide  claim,  where  there  is  a  desig- 
nation of  the   boundaries  with  the 


ordinary  use  of  the  woodland."  Dar- 
rah  v.  Kadison,  55  Pa.  Super.  Ct. 
335;  D.  W.  Alderman  &  Sons  Co.  v. 
McKnight,  78  S.  E.  982,  95  S.  Car. 
245;  Whealton,  et  al.,  v.  Doughty, 
72  S.  E.  112,  112  Va.  649. 

41.  "As  a  general  rule  the  law 
will  not  presume  that  possession 
separate  from  the  title  to  real  prop- 
erty is  of  an  adverse  character  and 
every  presumption  favors  the  con- 
struction that  it  was  in  subordina- 
tion to  the  title  of  the  true  owner; 
there  must  be  proof  that  the  pos- 
session was  actual,  continued,  no- 
torious, distinct  and  hostile."  Con- 
nor v.  Detroit  Term.  R.  Co.,  183 
Mich.  241;  Crosby  v.  City  of  Green- 
ville, 183  Mich.  452;  Murray  v.  Hud- 
son, 65   Mich.    670. 

"Notoriety  as  to  claim  of  title 
and  possession  is  for  the  purpose 
of  showing  that  the  original  owner 
had  notice  of  the  claim  and  posses- 
sion and  of  its  hostile  character 
and  is  presumed  to  have  acquiesed 
in  the  claim  of  the  possessor;   but 


138 


THE  LAW  OF  LAND  CONTRACTS 


[§74 


As  to  what  acts  are  sufficient  to  constitute  adverse  possession 
the  courts  are  varied  in  their  opinions,  as  will  be  seen  by  the 
note  below  where  cases  both  pro  and  con  are  digested.42 


where  the  original  owner  has  ac- 
tual knowledge  of  the  adverse  title 
and  of  the  hostile  possession  there- 
under, notoriety  becomes  immate- 
rial, actual  knowledge  having  taken 
its  place."  Lasley  v.  Kniskern,  152 
Mich.  244;  Courtney  v.  Ashcraft, 
105  S.  W.  106,  31  Ky.  Law  Rep.  1324. 

42.  The  requirements  of  an  ad- 
verse possession  necessary  to  es- 
tablish title  to  real  estate  are  well 
understood,  but  the  difficulty  arises 
in  applying  these  requirements  to 
the  particular  case,  which,  as  a 
rule,  must  be  controlled  by  its  own 
facts  and  circumstances."  Whit- 
aker  v.  The  Erie  Shooting  Club,  et 
al.,  102  Mich.  454. 

"Where  the  testimony  in  support 
of  t.  claim  of  adverse  possession 
tends  to  show  a  continuous  use  of 
the  land,  by  cutting  the  grass  and 
pasturing  the  cattle  thereon  each 
year  during  the  period  of  occu- 
pancy, in  addition  to  planting  trees 
upon  the  premises,  it  is  a  question 
for  the  jury  whether  such  occu- 
pancy was  practically  continuous, 
exclusive,  and  hostile,  and  intended 
to  be  such  by  the  claimants."  Saurs 
v.  Giddings,  90  Mich.  50. 

Cases  holding  that  acts  of  own- 
ership of  vacant,  wild  and  unoccu- 
pied lands  are  not  sufficient  to  con- 
stitute adverse  possession: 

Rucker  v.  Jackson,  60  So.  139, 
180  Ala.  109;  Lightfoot  v.  Head,  60 
So.  752,  64  Fla.  364. 

"Title  cannot  be  acquired  by  ad- 
verse possession  to  land  which  is 
in  a  wild  state,  vacant  and  unoc- 
cupied, and  on  which  no  apparent 
acts   of  ownership   have  been  per- 


formed." Haas  v.  Wilson,  154  Pac. 
1018,  97  Kan.  176;  Davis  v.  Davis, 
163  S.  W.  468,  157  Ky.  530;  Krueger 
v.  Market,  145  N.  W.  30,  124  Minn. 
393;  Jeffers  v.  Johnson,  175  S.  W. 
(Mo.)  581;  Morgan  v.  Pott,  101  S. 
W.  717,  124  Mo.  App.  371;  Wiechers 
v.  McCormick,  107  N.  Y.  Supp.  835. 
122  App.  Div.  860;  Talbot  v.  Cook, 
112  Pac.  709,  57  Or.  535;  Chilton  v. 
White,  78  S.  E.  1048,  72  W.  Va.  545; 
Driver  v.  Martin,  60  S.  W.  651,  68 
Ark.  551. 

"Continuous  use  and  occupancy 
for  the  time  required  by  law  for 
the  purpose  of  range  for  cattle  and 
hogs,  and  repeated  occupation  for 
the  purpose  of  cutting  timber,  will 
not  alone  amount  to  actual  posses- 
sion of  lands,  within  the  law  de- 
claring that  adverse  possession  of 
lands,  accompanied  by  written  evi- 
dence of  title  for  seven  years,  will 
ripen  into  a  perfect  legal  title, 
though  the  lands  are  so  situated  as 
to  be  unfit  for  actual  physical  resi- 
dence, and  unfit  for  cultivation  and 
suitable  only  for  the  purpose  above 
named."  McCook  v.  Crawford,  40  S. 
E.  225,  114  Ga.  337;  Nicholson  v.  Ar- 
onson,  48  Pac.  917,  58  Kan.  814;  De 
Lancey  v.  Hawkins,  49  N.  Y.  Supp. 
469,  23  App.  Div.  8,  judgment  af- 
firmed (1900)  57  N.  E.  1108,  163  N. 
Y.  587. 

"The  inclosure  of  a  tract  of  land 
with  a  large  quantity  of  other  lands 
in  a  pasture  by  means  of  a  small 
amount  of  fencing,  the  remainder  of 
the  inclosure  being  by  natural  bar- 
riers, such  as  streams  and  bayouB, 
is  not  such  an  actual  and  visible 
appropriation   of  such   tract   as   to 


§74] 


CORRECTING   DEFECTS    IN    THE   TITLE 


139 


constitute  adverse  possession." 
Hyde  v.  McFaddin,  140  Fed.  433,  72 
C.  C.  A.  655. 

Cases  holding  acts  sufficient  to 
perfect  title  by  adverse  possession: 
Folley  v.  Thomas,  93  N.  E.  181,  45 
Ind.  App.  559;  Thompson  v.  Still- 
well,  161  S.  W.  681,  253  Mo.  89; 
Myers  v.  Mayhew,  32  App.  D.  C. 
205. 

"Adverse  possession  of  unproduc- 
tive lands  consisting  of  barren  sand 
hills  cut  up  by  sloughs  is  shown  by 
recording  the  deed  under  which  the 
occupant  claims,  cutting  all  the 
timber  of  any  value  thereon,  hav- 
ing the  land  surveyed  and  boundary 
lines  grubbed  out  and  staked,  going 
upon  the  land  at  intervals,  claiming 
absolute  ownership,  clearing  a 
small  portion,  building  a  brush 
fence  around  the  portion  cleared, 
employing  agents  in  the  neighbor 
hood  of  the  land  to  look  after  It, 
and  paying  taxes,  without  proof 
of  actual  occupation."  Worthley  v. 
Burbanks,  45  N.  E.  779,  146  Ind. 
534. 

Moore  v.  Hinkle,  50  N.  E.  822,  151 
Ind.  343.  "Neither  actual  occupation, 
cultivation,  nor  residence  is  neces- 
sary to  constitute  'actual  posses- 
sion' of  property  in  such  sense  as  to 
render  it  adverse  to  the  true  owner, 
where  the  property  is  so  situated  as 
not  to  admit  of  permanent  useful 
improvement,  and  the  continued 
claim  of  the  party  is  evidenced  by 
public  acts  of  ownership,  such  as  he 
would  exercise  over  property  which 
he  claimed  in  his  own  right,  and 
would  not  exercise  over  property 
which  he  did  not  claim."  McCaughn 
v.  Young,  37  So.  839,  85  Miss.  277. 

"Where  defendant  took  posses- 
sion of  ground  under  color  of  title 
in  April,  1885,  and  had  ashes  and 


other  rubbish  removed,  and  occu- 
pied it  that  year  as  a  garden,  and 
the  following  year  constructed  a 
barn  on  it,  and  continued  in  actual, 
open  and  notorious  possession  un- 
der claim  of  title  until  June,  1896, 
he  was  entitled  to  a  decree  of 
ownership  in  the  ten  years  statute 
of  limitation."  St.  Lukes  Parish  of 
Cedar  Falls  v.  Miller  (Iowa),  84  N. 
W.  686. 

"In  an  action  over  a  disputed 
boundary  line  it  appeared  that  part 
of  the  land  in  dispute  was  cleared 
and  cultivated  by  defendant,  and 
the  rest  allowed  to  remain  in  tim- 
ber, and  used  by  him  for  cutting 
timber  according  to  his  needs.  Held, 
that  an  instruction  that,  to  show 
occupancy,  it  is  not  necessary  that 
land  be  cleared  and  cultivated,  but 
it  is  sufficient  to  show  that  it  has 
been  occupied  for  any  purpose  con- 
nected with  farm  usage,  is  not  er- 
roneous." Henry  v.  Henry,  80  N. 
W.  800,  122  Mich.  6. 

Sproule  v.  Alabama  &  V.  Rail- 
way Co.,  29  So.  163,  78  Miss.  88. 
"Where  it  appeared  that  a  rail- 
road company  built  its  tracks 
across  lands  in  controversy  in  186S, 
and  from  that  time  to  the  com- 
mencement of  the  suit,  in  1883,  oc- 
cupied and  used  the  land  for  a 
right-of-way,  and  there  was  no  evi- 
dence tending  to  show  that  the  rail- 
road company  entered  into  posses- 
sion by  permission  of  the  plaintiffs, 
such  actual,  open,  and  continuous 
possession  by  the  railroad  company, 
was  of  itself,  sufficient  evidence 
that  the  possession  was  adverse  to 
plaintiff's."  Turner  v.  Union  Pa- 
cific Ry.  Co.,  112  Mo.  542,  20  S.  W. 
673. 

City  of  Houston  v.  Finigan 
(Texas)     85    S.    W.    470.      "Actual 


140 


THE  LAW  OF  LAND  CONTRACTS 


[§74 


Lands  that  are  not  actually  occupied  as  a  residence  may  be 
divided  into  two  classes.  First :  Such  lands  as  are  cultivated, 
improved  and  inclosed,  and  second:  Such  lands  as  are  wild 
and  unimproved. 

In  the  first  class,  it  is  generally  held  that  the  inclosing  and 
cultivating  the  lands  is  sufficient  to  give  the  true  owner  notice 
that  the  lands  are  being  held  adversely,  and  if  such  acts  con- 
tinue for  the  statutory  period  it  will  give  the  claimant  a  good 
title  to  the  lands.43  And  though  in  the  interim  between  harvest 
and  recropping  no  person  was  actually  on  the  land,  and  noth- 
ing done  thereon,  yet  if  such  cropping  continued  from  year  to 
year  this  would  be  sufficient  to  constitute  adverse  possession.44 
Actual  physical  inclosure  by  fence  is  not  necessary  to  title  by 


occupancy  of  premises,  so  as  to 
indicate  at  every  instance  of  time, 
by  mere  observation,  the  extent 
of  the  hostile  use,  it  not  neces- 
sary to  satisfy  Rev.  St.  1893,  Sec. 
4214,  providing  that  for  the  pur- 
pose of  constituting  an  adverse  pos- 
session of  land  shall  be  deemed  to 
have  been  occupied  only  when  it 
has  been  protected  by  an  inclosure 
or  has  been  usually  cultivated  since 
it  need  be  only  such  continuous, 
exclusive,  hostile  use  as  in  the  judg- 
ment of  the  jury,  under  all  the  cir- 
cumstances is  sufficient  to  notffy 
the  true  owner,  actually  or  con- 
structively, of  the  invasion  of  his 
rights  and  the  actual  extent  there- 
of." Illinois  Steel  Co.  v.  Bilot,  85 
N.  W.  402,  109  Wis.  418,  83  Am.  St. 
Rep.  905. 

"Actual  inclosure  is  not  neces- 
sary to  constitute  adverse  posses- 
sion. Any  occupation,  visible  and 
notorious,  of  which  the  property  is 
susceptible,  and  which  includes  the 
true  owner  is  sufficient."  Holtzman 
v.  Douglas,  5  App.  D.  C.  397,  af- 
firmed (1897)  18  S.  Ct.  65,  168  U. 
S.  278,  42  L.  Ed.  466;  Pearson  v. 
Adams,  29  So.  977,  129  Ala.  157. 


43.  Cook  v.  Clinton,  64  Mich.  309; 
Murray  v.  Hudson,  65  Mich.  670. 

Actually  occupancy  by  the  real 
owner  is  not  essential  to  adverse 
possession,  if  the  nature  of  the  oc- 
cupancy is  such  that  he  ought  or 
might  have  known.  Bird  v.  Stark, 
66  Mich.  654. 

44.  "Adverse  possession  under 
the  statute  must  be  open,  notori- 
ous, continuous,  exclusive,  visible 
and  distinct,  as  well  as  adverse. 
There  must  be  an  actual  occupancy, 
as  distinguished  from  constructive 
possession,  of  a  portion  of  all  of 
the  premises  claimed;  not  neces- 
sarily living  thereon,  for,  if  the 
premises  are  inclosed  and  cultivated, 
this  would  be  a  sufficient  actual  ac- 
cupancy;  and  if  crops  were  con- 
tinually grown  thereon,  this  would 
be  a  visible  occupancy;  and  though 
in  the  interim  between  harvesting 
and  recropping  no  person  was  ac- 
tually on  the  land,  and  nothing 
done  thereon,  yet,  if  such  cropping 
continued  from  year  to  year,  this 
would  be  a  continuous  and  notori- 
ous occupancy."  Cook  v.  Clinton, 
64  Mich.  309. 


§74] 


CORRECTING    DEFECTS    IN    THE   TITLE 


141 


adverse  possession  if  the  claimant  shows  by  other  acts  that 
are  certain,  and  it  is  not  necessary  that  the  actual  cultivation 
of  the  land  be  extended  to  the  line  claimed,  if  the  acts  done 
make  it  manifest  that  he  intends  to  claim  to  the  line.45  But 
although  he  may  not  actually  cultivate  to  such  line  it  is  abso- 
lutely essential  that  there  be  an  actual  possession  of  some 
kind.*6 

To  claim  title  by  adverse  possession  of  wild  and  unoccupied 
lands  it  is  not  necessary  to  show  that  the  lands  have  been 
cultivated  or  inclosed  by  the  claimant.  Only  such  acts  of  pos- 
session are  required  as  are  consistent  with  the  nature  and  con- 
dition of  the  land,  but  they  must  be  of  such  a  nature  as  should 
notify  the  real  owner  of  such  possession  if  he  were  passing 
by.*7  It  is  not  necessary  that  they  be  such  as  would  notify  a 
passing  stranger.48    Use  of  land  as  a  wood  lot  appurtenant  to 


45.  Sauers  v.  Giddings,  90  Mich. 
50.  "Actual  physical  inclosure  by 
fence  is  not  necessary  to  title  by 
adverse  possession,  if  the  claimant 
shows  his  occupancy  and  claim  of 
title  in  some  other  certain  way; 
and  it  is  not  necessary  that  culti- 
vation or  improvement  extend  to 
the  line  claimed,  if  the  acts  done 
manifest  intent  to  claim  to  the 
line."  Lyons  v.  Fairmont  Real  Es- 
tate Co.,  77  S.  E.  525,  71  W.  Va.  754; 
Dreger  v.  Budde,  113  N.  W.  950, 
133  Wis.  516. 

46.  Cook  v.  Clinton,  64  Mich.  309; 
La  Fountain  v.  Dee,  110  Mich.  347. 

47.  Crosby  v.  City  of  Greenville, 
183  Mich.  452.  "When  one  enters 
upon  land  under  color  of  title  and 
with  claim  of  ownership,  any  acts  of 
user  which  are  continuous,  and  indi- 
cate unequivocally  to  the  neighbor- 
hood in  which  the  land  is  situated 
that  It  is  appropriated  exclusively  to 
his  individual  use  and  ownership, 
are  sufficient  to  render  the  posses- 
sion adverse."  Murray  v.  Hudson, 
65   Mich.   670. 


Whitaker  v.  The  Erie  Shooting 
Club,  et  al.,  102  Mich.  454;  Mer- 
ritt  v.  Westerman,  180  Mich.  449. 
"Where  the  purchaser  of  a  void 
tax  title  upon  a  piece  of  wild  land 
took  such  possession  and  made  such 
use  of  the  land  as  was  reasonable 
under  the  circumstances,  but  for 
a  period  of  ten  years  thereafter 
did  nothing  to  indicate  actual  pos- 
session to  the  owner  or  a  stranger 
passing  over  the  land,  he  did  not 
obtain  title  by  adverse  possession 
under  color  of  title,  though  the 
owner  had  actual  knowledge  of  his 
claim."  Lasley  v.  Kniskern,  152 
Mich.  244. 

48.  Murray  v.  Hudson,  65  Mich. 
670;  Whitaker  v.  The  Erie  Shooting 
Club,  et  al.,  102  Mich.  454;  Mer- 
ritt  v.  Westerman,  180  Mich.  449. 
"Title  cannot  be  acquired  by  ad- 
verse possession  to  land  which  is 
in  a  wild  state,  vacant  and  unoc- 
cupied, and  on  which  no  apparent 
acts  of  ownership  have  been  per 
formed."  Haas  v.  Wilson,  154  Pac. 
1018,  97  Kan.  176. 


142 


THE  LAW  OF  LAND  CONTRACTS 


[§74 


ones  farm,  and  the  exercise  of  ones  acts  of  ownership  as  are 
necessary  to  such  use,  amount  if  continuous  and  uninterrupted, 
to  actual  possession.49  The  posting  of  notices  around  a  piece 
of  land  from  early  in  the  spring  until  late  in  the  autumn  for 
twelve  successive  years,  that  the  land  belongs  to  a  certain  club 
together  with  a  notice  that  all  trespassers  will  be  prosecuted, 
are  sufficient.60  But  such  signs  must  be  continuous  throughout 
the  period  provided  by  statute.51  The  cutting  of  grass  and 
timber,  ditching,  paying  general  and  special  taxes  are  sufficient 
if  the  same  are  open,  notorious  and  continuous.52  The  posses- 
sion may  be  constructive  only.63  The  masting  of  hogs  thereon 
or  the  ranging  of  cattle,  or  the  conducting  of  a  sugar  camp  will 
not  of  itself  be  sufficient.64 


49.  Murray  v.  Hudson,  65  Mich. 
670. 

50.  "That  the  notices  which  were 
posted  around  the  land  from  early 
in  the  spring  till  late  in  the  fall, 
every  year  for  twelve  successive 
years,  were  notices  of  an  adverse 
title  and  possession;  that  the 
owner,  if  he  had  visited  the  land 
could  not  have  failed  to  understand 
their  meaning,  as  they  were  incon- 
sistent with  his  rights  as  the  origi- 
nal owner  of  the  fee."  Whitaker 
v.  The  Erie  Shooting  Club,  et  al., 
102  Mich.  454. 

51.  Whitaker  v.  The  Erie  Shoot- 
ing Club,  et  al.,  102  Mich.  454. 

52.  "That  while  it  may  be  con- 
ceded that  paying  taxes,  or  assert- 
ing title,  or  the  common  under- 
standing in  the  neighborhood,  or 
making  surveys,  or  an  occasional 
renting  for  trapping  and  shooting 
was  not  sufficient  to  establish  title 
by  adverse  possession,  yet  such 
acts  were  all  competent  evidence 
to  be  considered  in  determining 
the  question."  Whitaker  v.  The 
Erie  Shooting  Club,  et.  al.,  102 
Mich.  454. 


Sauers  v.  Giddings,  90  Mich.  50. 
"The  claim  of  a  tax  title  is  nec- 
essarily hostile  to  that  of  the  origi- 
nal owner,"  Lasley  v.  Kniskern, 
152  Mich.  244. 

53.  Cook  v.  Clinton,  64  Mich.  309; 
Fuller  v.  Swensberg,  106  Mich.  305. 
"Constructive  actual  possession  of 
lands  for  the  statutory  period 
bars  recovery  thereof  by  the  title 
holder  as  effectively  as  a  purely 
actual  possession."  Miniard  v.  Na- 
pier, 180  S.  W.  363,  167,  Ky.  208. 

54.  Sauers  v.  Giddings,  90  Mich. 
50.  "In  order  to  acquire  title  by  ad- 
verse possession  as  against  an  el- 
der grant,  the  party  asserting  such 
a  title  must  take  actual  physical 
possession  of  all  the  land  which  he 
proposes  to  acquire,  and  hold  It 
adversely,  actually,  and  continu- 
ously for  the  fully  statutory  period; 
and  the  masting  of  hogs  thereon, 
or  the  ranging  of  cattle,  or  the  con- 
ducting of  a  sugar  camp,  will  not 
constitute  such  adverse  possession 
within  the  meaning  of  the  law." 
Courtney  v.  Ashcraft,  105  S.  W.  106, 
31  Ky.  Rep.  1324. 


§76] 


CORRECTING    DEFECTS    IN    THE   TITLE  143 


§75.  Adverse  Possession  Against  the  State.— The  statute 
of  limitations  runs  against  the  state  the  same  as  it  does  against 
an  individual,  the  statute  providing:65  "No  suit  for  the  re- 
covery of  land  shall  be  commenced  by  or  in  behalf  of  the  people 
of  this  state,  unless  within  fifteen  years  after  the  right  or  title 
of  the  people  of  the  state  therein  first  accrued,  or  within  fifteen 
years  after  the  said  people,  or  those  from  or  through  whom 
they  claim,  shall  have  been  seized  or  possessed  of  the  premises, 
or  shall  have  received  the  rents  and  profits  of  the  same,  or 
some  part  thereof." 

By  reason  of  another  section  of  the  same  act,  the  foregoing 
provisions  of  the  statute  do  not  apply  to  actions  brought  by 
municipal  corporations  for  the  recovery  of  possession  of  any 
public  highway,  street  or  alley,  or  other  public  ground.66 

§  76.  Tacking  Successive  Possessions. — Where  the  posses- 
sions1 of  successive  adverse  cocupants  hold  continuously  for 
successive  periods  of  adverse  occupation,  their  holdings  may 
be  tacked  to  each  other  when  each  occupant  takes  under  the 
next  preceding  occupant  by  descent,  will,  grant,  or  by  voluntary 
transfer  of  possession.67 

In  order  that  possession  of  successive  occupants  may  be 
tacked  it  is  essential  that  privity  either  of  contract,  estate,  or 
blood,  should  exist  between  the  successive  occupants.68 

The  entry  of  the  succeeding  occupant  must  be  with  the  con- 
sent of  his  predecessor,  evidenced  by  contract  or  by  an  act  of 
law  passing  the  estate  from  the  latter  to  the  former.69 

Privity  is  necessary  in  order  that  the  successive  possessions 
may  be  connected  with  each  other,60  but  the  following  statute 
in  Michigan  has  dispensed  with  the  necessity  of  privity  be- 

55.  Compiled  Laws  1915,  Section  other  public  grounds."  Section 
12321.  12311,  Compiled  Laws  1915. 

56.  "Within  fifteen  years  in  all  57-  Gates  Mich-  Real  Property, 
other  cases,  provided  that  the  pro-      "". 

visions  of  this  section  shall  not  ap-  58-  Sheldeon  v.  Mich.  Cent.  R.  R. 

ply  to  actions  brought  by  any  mu-  Co.,  161  Mich.  503. 

nicipal  corporation,   for  the  recov-  59.  Shaw  v.  Nicholay,  30  Mo.  99. 

ery  of  the  possession  of  any  public  60.  Sawyer  v.   Kendall,   10   Cush. 

highway,    street,    or    alley,    or    any  (Mass.)   241. 


144 


THE  LAW  OF  LAND  CONTRACTS 


[§76 


tween  successive  occupants  under  certain  circumstances.61  The 
statute  provides :  "That  no  person  shall  commence  an  action 
for  the  recovery  of  lands  nor  make  any  entry  thereupon  unless 
within  twenty  years  after  the  right  to  make  such  entry  or 
bring  such  action  first  accrued,  or  within  twenty-five  years 
after  he,  or  those  from,  by  or  under  whom  he  claims,  shall 
have  been  seized  or  possessed  of  the  premises,"  and  it  was 
held  that  the  land-owner  is  barred  by  the  lapse  of  twenty-five 
years,  although  there  may  have  been  no  privity  between  suc- 
cessive disseizors  in  possession  of  the  property  during  the 
twenty-five  years,  but  to  be  barred  in  twenty  years  there  must 
be  privity  between  the  successive  disseizors.68 

Privity  exists  between  vendor  and  vendee  such  as  will  author- 
ize the  tacking  of  their  successive  possession  in  the  vendees.63 
The  fact  that  the  deed  was  not  recorded,64  or  that  the  vendor 
remains  in  possession,66  or  the  vendee  did  not  receive  the  deed 
at  the  time  of  the  purchase,  if  he  took  possession  on  that  date, 
will  not  affect  the  operation  of  the  rule.66 

A  purchaser  of  land  at  a  judicial  sale  may  tack  his  possession 
to  that  of  the  person  whose  land  is  so  sold  to  make  up  the 
statutory  period,67  but  the  sale  must  rest  on  a  valid  decree, 
judgment  or  order.68 

Where  the  vendor  permits  the  vendee  in  a  contract  of  pur- 
chase to  take  possession,  the  occupancy  of  the  vendee  inures 
to  the  benefit  of  the  vendor  for  the  purpose  of  perfecting  title 
of  the  latter  by  adverse  possession  and  may  be  tacked  to  his 
possession  to  perfect  title  in  him.69  The  possession  of  such 
vendee  cannot  be  tacked  to  that  of  his  grantee  to  make  up  the 


61.  Rev.  Stat.  Mich.  (1838)  pp. 
573,  574,  Sec.  1;  re-enacted  in  Comp. 
Laws  Mich.  1915,  Sec.  12311,  chang- 
ing the  period  to  fifteen  years. 

62.  Riopelle  v.  Gilman,  23  Mich. 
33;  Vincent  v.  City  of  Kalamazoo, 
111  Mich.  230. 

63.  Gildea  v.  Warren,  173  Mich. 
28. 

64.  North  Pac.  R.  Co.  v.  Concan- 
non,  75  Wash,  591   (135  Pac.   652). 

65.  Clithero  v.   Fenner,   122  Wis. 


356,   99   N.   W.   1027;    Whiteford   v. 
Crooks,  54  Mich.  261. 

66.  Barron  v.  Barron  (Ala.),  25 
La.  55. 

67.  Peele  v.  Chener  (Mass.),  8 
Allen  89;  Martenson  v.  Murphy, 
153.  Wis.  389  (191  N.  W.  273). 

68.  Callier  v.  Couts,  92  Tex.  234; 
47  S.  W.   525. 

69.  Sargent  v.  Ballard  (Mass.),  9 
Pick;  251;  Rodgers  v.  Beckwith,  172 
Mich.  544. 


§76] 


CORRECTING   DEFECTS    IN    THE   TITLE  145 


statutory  period  for  the  purpose  of  perfecting  title  by  adverse 
possession  in  the  vendee,70  but  in  Michigan  by  statute  a  vendee 
may  secure  a  title  by  adverse  possession  where  he  claims  under 
a  contract  of  purchase,  having  been  in  possession  for  a  period 
of  twenty  years  after  the  last  payment  was  due  on  the  contract 
or  after  the  last  payment  was  made  on  the  contract  of  pur- 
chase.71 

A  landlord  may  tack  the  possession  of  his  several  tenants 
where  it  appears  there  was  continued  possession  of  the 
tenants.72 

Privity  exists  between  two  successive  holders  where  the  lat- 
ter takes  under  the  earlier  by  descent.73  In  Michigan  the 
statute  provides  that  if  the  right  or  title  of  the  person  bring- 
ing an  action  for  the  recovery  of  lands  first  accrued  to  an 
ancestor,  predecessor  or  grantor,  of  the  person  bringing  the 
action,  the  period  of  limitation  is  to  be  computed  when  the 
right  or  title  so  first  accrued  to  the  ancestor,  etc.74 

The  possession  of  an  administrator,  where  he  has  the  legal 
right  to  possession  of  the  intestate's  real  estate,75  or  the 
trustee  of  a  bankrupt,  may  be  tacked  to  complete  the  bar  to 
the  statute  of  limitations.76 

If  a  mortgagor,  who  is  in  adverse  possession,  orally  transfers 
his  occupancy  to  his  mortgagee,  the  two  possessions  may  be 
tacked.77 

Where  a  claimant  to  property  had  sold  the  same  in  contract 
to  successive  purchasers  who  forfeited  their  rights  and  to 
whose  possession  the  claimnat  from  time  to  time  succeeded, 
he  thereby  became  entitled  to  tack  their  possessions  to  his 
own,  in  order  to  make  out  his  title  by  adverse  possession.78 

70.  Plumer  v.  Brown,  8  Mete  75.  Ricker  v.  Butler,  45  Minn.  545, 
(Mass.)  578.  48  N.  W.  407. 

71.  Comp.  Laws  Mich.  1915,  Sec.  76.  Cannon  v.  Prude  (Ala.),  62  So. 
12314.  24. 

72.  Murphy  v.  Com.,  187  Mass.  ??  Harrison  v  gpencer,  110 
361;   73  N.  E.  524.  Mich    ^ 

73.  Trast    v.    Courtis,    172    Mass. 

401    52  N   E   515  78'  RIeritt     v-     Westerman,      165 

«  ^    -««    «  M*ch.  535. 

74.  Comp.  Laws  Mich.  1915,  Sec. 

12312. 


146  THE  LAW  0F  LAND  CONTRACTS  [§76 

Where  successive  grantees  of  land  take  possession  of  a  strip 
of  land  adjoining  that  described  in  their  deeds  claiming  title 
thereto  under  their  deeds,  their  successive  adverse  possession 
may  be  tacked  to  make  out  the  statutory  period.79 

Possession  of  a  strip  of  land  by  a  tenant  inures  to  the  bene- 
fit of  his  landlord,  and  cannot  be  tacked  on  to  his  occupancy  as 
owner,  after  his  purchase  from  the  landlord  of  adjoining  land, 
for  the  purpose  of  establishing  title  by  adverse  possession.80 

Separate  successive  disseizins  cannot  be  tacked  so  as  to  con- 
stitute one  and  a  single  continuous  possession,  unless  there  is 
privity  of  estate,  he  cannot  have  the  benefit  of  the  grantor's 
possession  of  lands  which  are  not  conveyed  by  the  deed.81 

§  77.  Titles  Held  to  Be  Defective — Michigan  Decisions. — 

Where  the  record  shows  that  the  title  to  real  estate  is  based 
upon  the  foreclosure  of  a  mortgage  by  advertisement,  and  the 
record  does  not  show  that  such  mortgage  contains  a  power  of 
sale,  the  title  is  not  marketable,  even  though  the  sheriff's  deed 
contains  a  recital  that  the  sale  so  made  was  pursuant  to  a 
clause  contained  in  the  mortgage,  as  such  recital  in  the 
sheriff's  deed  is  no  evidence  of  the  fact.82  A  title  is  not  market- 
able which  rests  upon  a  deed  which  essentially  misdescribes 
the  property  conveyed.88 

Where  a  suit  is  pending  for  specific  performance  of  another 
contract  against  the  vendor,  which  suit  remains  undetermined, 
such  title  is  not  merchantable.84 

An  individual  holding  title  to  land  through  a  tax  deed  has  a 
marketable  title  to  such  real  estate  after  such  notices  as  re- 
quired by  law  had  been  served  for  the  perfection  of  such  tax 
title.86 

Where  a  vendor  has  a  title  merchantable  through  adverse 
possession,  such  title  does  not  meet  the  requirements  of  a 
contract  calling  for  a  merchantable  title  of  record.86 

79.  Gildia   v.   Warren,    173    Mich.  82.  Bradway  v.  Miller,  200  Mich. 

28.  648. 


80.  Wilhelm  v.  Herron,  211  Mich. 
339. 


83.  Id. 

84.  Surgey   v.   Dickey,   199   Mich. 
251. 

81.  Sheldon   v.    Mich.   Central   R.  85.  Hicks  v.  Smith,  183  Mich.  137. 

Co.,  161  Mich  503;  Lake  Shore,  etc,  86.  Lake   Brie   Land   Co.   v.   Chi- 

R.  Co.  v.  Serling,  189  Mich.  366.  linski,  197  Mich.  216. 


§  77]  CORRECTING   DEFECTS    IN    THE   TITLE  147 

It  is  not  essential  that  the  vendor  have  a  merchantable  title 
at  the  time  of  the  execution  of  the  contract,  if  he  is  able  to 
give  a  good  title  at  the  time  he  is  required  to  do  so  under  the 
terms  of  said  contract.87 

Where  a  vendor's  title  to  the  land  at  the  time  the  contract 
was  executed  was  defective,  the  vendor  will  not  be  permitted 
to  rescind  the  contract  for  that  reason  if  it  appears  that  the 
vendor  would  be  able  to  secure  title  at  the  time  of  the  perform- 
ance of  the  agreement.88 

Where  the  record  did  not  show  that  the  vendor  had  acquired 
the  outstanding  interests  of  two  heirs  to  the  land,  he  was  un- 
able to  convey  a  marketable  title.89 

One  who  had  obtained  land  on  a  contract,  and  having  as- 
signed to  three  others  an  undivided  14  interest  in  said  con- 
tract, was  not  in  position  to  give  a  merchantable  title  to  an- 
other who  had  notice  of  the  assignment.90 

Where  title  has  been  acquired  through  tax  title,  and  more 
than  five  years  have  elapsed  since  he  obtained  such  tax  title, 
he  is  in  position  to  give  a  merchantable  title  to  real  estate.91 

Where  vendor  obtained  title  to  the  land  through  foreclosure 
of  a  mortgage,  and  the  sale  under  such  foreclosure  was  made 
ten  years  after  the  decree  was  entered,  the  title  was  for  that 
reason,  sufficiently  doubtful  so  that  the  vendor  could  not  give 
a  marketable  title  to  the  land.92 

Where  a  warranty  deed  was  signed  by  a  wife  in  blank  and 
was  afterwards  filled  in  by  the  husband,  the  dower  interest  of 
the  wife  in  the  property  is  not  barred  and  such  deed  does  not 
convey  a  marketable  title.93 

Where  a  title  was  derived  through  foreclosure  proceedings, 
and  certain  attaching  creditors  at  the  time  of  such  proceedings, 
and  certain  parties  holding  a  mortgage,  were  not  made  parties 

87.  Rogers  v.  Eaton,  181  Mich.  91.  Boynton  v.  Veldman,  131 
620;  Darling  v.  Huff,  175  Mich.  304.  Mich.  555. 

88.  Silver  v.  Daenzer,  167  Mich.  92.  Walker  v.  Gillman,  127  Mich. 
362.  269. 

89.  Weaver  v.  Richards,  144  Mich. 
395. 

90.  Schwartz     v.     Woodruff,     132 
Mich.  513. 


93.  Maynard  v.  Davis,  127   Mich. 
571. 


148  THE  LAW  0F  LAND  CONTRACTS  [§  77 

to  such  foreclosure  proceedings,  they  were  not  affected  thereby, 
and  the  vendor  could  not  for  that  reason,  give  a  marketable 
title  to  the  land.84 

Where  the  statute  provides  that  all  persons  who  are  minors, 
when  their  right  to  sue  for  land  first  accrues,  may  bring  an 
action  at  any  time  within  five  years  after  attaining  their 
majority  for  the  recovery  of  such  land  and  an  administrator 
of  an  estate  who  has  purchased  a  portion  of  the  estate  of  said 
minor  at  a  judicial  sale,  cannot  give  a  perfect  title  to  such 
property  within  5  years  from  the  time  the  youngest  minor 
becomes  of  age  as  such  minor  has  the  right  to  repudiate  such 
sale  at  any  time  within  such  five-year  period.96 

Where  property  was  devised  to  a  vendor  under  a  will,  such 
vendor  could  not  give  a  good  title  to  such  real  estate  until 
after  the  probate  proceedings  had  been  closed,  for  the  reason 
that  claims  might  be  outstanding  in  sufficient  numbers  to 
make  it  necessary  to  sell  the  real  estate.96 

If  land  contracted  to  be  conveyed  in  a  land  contract  is  en- 
cumbered or  clouded  by  an  outstanding  life  estate,  the  vendor 
cannot  convey  a  good  and  marketable  title.97 

Where  the  title  of  property  was  encumbered  by  an  execu- 
tion sale  which  had  been  previously  made,  such  title  is  not 
marketable.98 

The  mere  fact  that  a  mortgage  on  real  estate  has  not  been 
released  from  the  records,  if  such  mortgage  has  been  actually 
paid,  will  not  prevent  the  owner  from  giving  a  good  and  mar- 
ketable title  to  the  property.99 

We  have  appended  to  this  note  an  abstract  of  the  Michigan 
decisions  wherein  titles  have  been  held  to  be  defective.100 

94.  Todd  v.  McLaughlin,  125  100.  Bradway  v.  Miller,  200  Mich. 
Mich.  268.                                                  648.    An  agreement  in  a  land  con- 

95.  Ford  v.  Wright,  114  Mich.  122.      tract    that    the    vendor    shall    give 

an  abstract  showing  a  marketable 
title  is  good,  and  one  which  shows 
that  the  title  rests  upon  the  fore- 

97.  Deitman  v.  Arnold,  71  Mich.      closure  of  a  mortgage,  where  such 

6o6-  mortgage  does  not  contain  a  power 

98.  Scadin  v.  Sherwood,  67  Mich.  0f  saie)  d0e8  not  show  a  marketa- 
230.  ble  title. 

99.  Curran  v.  Rogers,  35  Mich.  Bradway  v.  Miller,  200  Mich.  648. 
220.  A   title   is   not   marketable   which 


96.  Piatt    v.    Newman,    71    Mich. 
112. 


§77] 


CORRECTING    DEFECTS    IN    THE   TITLE 


149 


rests  upon  a  deed  which  essentially 
misdescribes  the  property  conveyed. 

Bradway  v.  Miller,  200  Mich.  648. 
An  agreement  in  a  land  contract 
to  furnish  an  abstract  showing  a 
marketable  title  is  not  complied 
with  by  evidence  of  adverse  pos- 
session which  might  prevail  in  an 
ejectment  suit  or  a  suit  to  secure 
the  correction  of  the  records,  and 
a  request  on  the  part  of  the  plain- 
tiff In  a  specific  performance  suit 
for  time  to  have  the  records  cor- 
rected was  properly  denied. 

Sorge  v.  Dickie,  199  Mich.  251. 
The  abstract  showed  a  previous  bill 
for  specific  performance  brought 
by  another  party  which  was  then 
pending.  Such  an  abstract  fails 
to  show  a  merchantable  title  in  the 
vendor. 

Lake  Erie  Land  Co.  v.  Chilinski, 
197  Mich.  214.  Where  the  contract 
provides  for  an  abstract  showing  a 
merchantable  title,  such  title  must 
be  shown  in  the  abstract.  If  the 
abstract  does  not  show  a  merchant- 
able title,  the  provision  of  the  con- 
tract is  not  satisfied  by  parol  evi- 
dence showing  a  merchantable  title 
in  fact. 

Hicks  v.  Smith,  183  Mich.  37.  A 
person  holding  title  to  land  through 
a  tax  deed  can  convey  a  marketable 
title  to  land  to  a  purchaser  under 
a  land  contract  after  such  notices 
have  been  served  for  the  perfection 
of  the  title  as  required  by  law.  In 
this  case  it  was  claimed  that  the 
notices  required  by  law  to  perfect 
the  title  under  a  tax  deed  were  not 
legally  and  properly  served. 

Rogers  v.  Eaton,  181  Mich.  620. 
It  was  claimed  here  that  the  con- 
tract for  the  sale  of  land  was  void 
because  the  vendor  at  the  time  the 
contract  was  entered  into  could  not 


give  a  good  title  to  the  same,  al- 
though the  vendor  was  able  to  give 
such  title  at  the  time  the  contract 
was  to  be  performed.  It  is  not  es- 
sential that  the  vendor  have  the 
title  to  the  land  at  the  time  he  en- 
ters into  the  contract,  if  he  is  able 
to  give  good  title  at  the  time  of  per- 
formance. 

Darling  v.  Haff,  175  Mich.  304. 
The  property  of  the  vendor  was 
encumbered  by  a  deed  to  secure  a 
loan  at  the  time  the  contract  was 
entered  into,  but  he  wras  able  to 
give  good  title  at  the  time  of  per- 
formance. The  purchaser  was  not 
in  a  position  to  claim  fraud  or  de- 
ceit in  not  disclosing  the  condition 
of  the  title  at  the  time  the  contract 
was  entered  into. 

Silfver  v.  Daenzer,  167  Mich.  362. 
Vendor's  title  to  the  land  at  the 
time  the  land  contract  was  exe- 
cuted was  defective.  Because  of 
the  defect  the  vendee  attempted 
to  rescind  the  contract  and  demand 
the  return  of  the  money  paid.  At 
the  time  the  vendor  was  having  the 
title  perfected,  and  in  fact  had  the 
title  perfected  at  the  time  he  was 
bound  to  perform  under  the  terms 
of  the  contract.  The  vendor  can- 
not rescind  the  contract  because  of 
defective  title  at  the  time  the  con- 
tract was  executed,  if  the  vendee 
was  able  to  clear  up  the  title  and 
actually  did  have  the  title  cleared 
up  at  the  time  he  was  bound  to 
perform. 

Cossett  v.  O'Riley,  160  Mich.  101. 
A  suit  was  pending  to  set  aside 
an  assignment  of  mortgage  against 
the  land  that  the  defendant  had 
contracted  to  sell  to  plaintiff.  A 
lis  pendens  of  said  suit  had  been 
filed.  The  fact  that  the  vendor  be- 
lieved his  statements  to  be  true  at 


150 


THE  LAW  OF  LAND  CONTRACTS 


[§77 


the  time  that  he  made  them  does 
not  relieve  him  of  the  effects  of  his 
false  statement  where  he  has 
agreed  to  give  a  good  and  mer- 
chantable title  to  the  land.  But  if 
he  is  able  to  make  the  title  good 
and  offers  to  do  so,  the  contract  is 
not  subject  to  rescission  for  the 
fraud. 

Weaver  v.  Richards,  144  Mich.  395. 
The  record  did  not  show  that  the 
vendor  had  acquired  the  alleged  out- 
standing interests  of  two  heirs  in  the 
lands.  Under  a  contract  to  convey 
land,  the  vendor  is  bound  to  con- 
vey to  the  purchaser  a  merchanta- 
ble title,  viz.,  one  which  is  unas- 
sailable on  the  face  of  the  record 
as  well  as  in  fact. 

Schwartz  v.  Woodruff,  132  Mich. 
513.  One,  who  had  obtained  land 
on  contract,  having  assigned  to 
three  others  an  undivided  one- 
fourth  interest  in  said  contract,  can- 
not give  a  perfect  title  to  another 
who  has  notice  of  the  assignment. 

Boynton  v.  Veldman,  131  Mich. 
555.  Vendee  takes  the  position  that 
vendor  cannot  give  a  marketable 
title  to  the  premises  under  a  land 
contract  because  the  vendor  is 
owner  of  the  land  in  common  with 
another  party  named  Bell.  Bell 
and  the  vendor  obtained  their  in- 
terests in  said  land  by  different 
Instruments  and  at  different  times. 
Vendor  purchased  the  tax  titles  to 
said  land,  said  land  having  been 
sold  for  taxes  because  of  Bell's  fail- 
ure to  pay  the  taxes.  Bell  never 
made  any  objection  to  the  purchase 
of  these  titles  by  the  vendor.  Five 
years  have  elapsed  since  said  pur- 
chase of  the  tax  titles  and  Bell  has 
not  made  any  claim  to  the  property. 

Held  that  the  vendor  can  give  a 


good   and   marketable   title   to   the 
premises. 

Walker  v.  Gillman,  127  Mich.  269. 
vendor  obtained  title  to  land 
through  a  foreclosure  Bale  which 
took  place  more  than  10  years  after 
the  decree  was  entered.  The  title 
was  at  least  doubtful,  so  the  vendor 
could  not  give  a  good  title  to  the 
land. 

Maynard  v.  Davis,  127  Mich.  571. 
A  warranty  deed  signed  by  the  wife 
in  blank  and  afterwards  filled  in 
by  the  husband  does  not  bar  the 
dower  interest  of  the  wife  in  the 
property,  and  such  deed  does  not 
convey  a  marketable  title. 

Todd  v.  McLaughlin,  125  Mich. 
263.  It  is  claimed  that  as  certain 
attachments  placed  upon  land 
which  had  been  sold  by  means  of  a 
land  contract  had  been  withdrawn, 
and  that  a  mortgage  and  assign- 
ment for  the  benefit  of  creditors 
by  the  vendor  had  been  released, 
that  the  vendor  could  give  a  good 
and  marketable  title  to  the  land. 
This  cannot  be  done,  as  the  attach- 
ing creditors,  the  assignee  for  the 
benefit  of  creditors,  and  the  party 
holding  the  mortgage  were  not 
made  parties  defendants  to  the  fore- 
closure proceedings,  which  had 
been  brought  by  the  vendor  to  com- 
pel performance  of  the  contract. 

Ford  v.  Wright,  114  Mich.  122,  2 
Howell's  Stat.  Sec.  8702,  provides 
that  all  persons  who  are  minors 
when  their  right  to  sue  for  land 
first  accrues  may  bring  an  action 
any  time  within  five  years  after  at- 
taining their  majority.  An  admin- 
istrator of  an  estate  and  guardian 
of  the  minor  children,  who  has  pur- 
chased a  portion  of  the  estate  at 
a  judicial  sale,  cannot  give  a  per- 
fect title   to  such   property  within 


§77] 


CORRECTING    DEFECTS    IN    THE   TITLE 


151 


five  years  from  the  time  that  the 
youngest  minor  becomes  of  age.  If 
there  is  a  reasonable  doubt  as  to 
whether  the  title  is  good  the  title 
is  not  marketable. 

Barnard  v.  Brown,  112  Mich.  452. 
In  this  case  the  vendor  under  the 
land  contract  obtained  possession 
of  the  land  by  adverse  possession. 
If  the  title  is  in  fee  and  unencum- 
bered, it  is  not  necessary  that  the 
title  be  perfect  upon  the  record  in 
order  to  make  it  a  marketable  title. 
A  marketable  title  is  one  of  such 
character  as  should  assure  to  the 
vendee  the  quiet  and  peacable  en- 
joyment of  the  property,  and  one 
which  is  free  from  encumbrance. 

Piatt  v.  Newman,  71  Mich.  112. 
Where  the  contract  for  the  sale  of 
lands  provides  that  the  vendee  shall 
be  protected  from  all  interference 
in  regard  to  the  title  of  land,  both 
legal  and  otherwise,  the  vendee  is 
not  obliged  to  rely  on  the  warran 
ties  or  covenants  of  the  deed.  He 
is  entitled  to  a  perfect  title.  The 
fact  that  the  vendor  was  the  de- 
visee in  a  will  of  the  property  con- 
veyed in  the  contract,  where  the 
estate  has  not  been  settled  by  pro- 
bate proceedings,  does  not  make  it 
possible  in  itself  for  the  vendor  to 
give  a  perfect  title,  as  it  does  not 
settle  the  matter  of  claims  that 
may  be  outstanding  against  the  es- 
tate. 

Dikeman,  et  al.  v.  Arnold,  71 
Mich.  656.  If  land  contracted  to  be 
conveyed  in  a  land  contract  is  en- 
cumbered or  clouded  by  an  out- 
standing life  estate,  the  vendor 
cannot  convey  a  good  and  marketa- 
ble title,  as  there  is  a  reasonable 


doubt  as  to  the  sufficiency  of  the 
title. 

Scadin  v.  Sherwood,  67  Mich.  230. 
The  title  to  the  property  sold  on  a 
land  contract  was  encumbered  by 
an  execution  sale  which  had  been 
previously  made.  It  is  the  conten- 
tion of  the  defendants  that  the  exe- 
cution sale  is  void  and  that  the 
plaintiffs  can  recover  the  land  by 
an  ejectment  suit,  and  therefore 
cannot  repudiate  the  contract.  Held 
that  the  plaintiffs  are  entitled  to 
a  good  and  marketable  title,  and 
cannot  be  compelled  to  accept  land 
where  they  would  be  compelled  to 
litigate  for  the  same. 

Gale  v.  Goult,  et  al.,  40  Mich. 
515.  A  grantee  by  voluntary  deed, 
where  no  fraud  has  been  shown, 
has  a  good  title  as  against  the  gran- 
tor and  any  subsequent  grantee  or 
mortgagee  under  him,  or  any  sub- 
sequent creditor. 

Curran  v.  Rogers,  35  Mich.  220. 
The  mere  fact  that  a  mortgage  on 
real  property  has  not  been  released 
from  the  records  if  such  mortgage 
has  been  actually  paid  will  not  pre 
vent  the  owner  from  giving  a  good 
and  marketable  title  to  the  prop- 
erty. 

Allen  v.  Atkinson,  21  Mich.  351. 
Where  one  contracts  to  sell  land 
and  the  contract  is  silent  as  to  the 
title,  it  is  presumed  that  the  title 
is  good,  yet  nevertheless  the  ven- 
dee is  entitled  to  a  good  and  mar- 
ketable title  to  the  land.  Where 
the  record  shows  an  apparent  en- 
cumbrance on  the  land  the  vendee 
has  a  right  to  a  reasonable  time 
to  investigate  the  title  before  car- 
rying out  his  part  of  the  contract. 


152 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


§78.  Defective  Titles — Decisions  from  Other  States.— In  the 

accompanying  note  we  have  collected  a  large  number  of  cases 
giving  a  brief  abstract  of  those  decisions  from  various  states 
wherein  the  titles  have  been  held  to  be  defective.101 


101.      Hedderly    v.    Johnson,    42 
Minn.  443,  44  N.  W.  1056,  12  A.  S. 
R.    521.     Iti   a   conveyance   of  real 
estate    was    the    folowing    clause: 
"Reserving,  however,  a  strip  of  land 
one  hundred  and  fifty  feet  wide,  to 
be  used  by  the  said  railroad  com- 
pany   for   a    right-of-way   or    other 
railroad  purposes  where  the  main 
line    of    its    road,    or    any    of    its 
branches,  as  now  located  and  con- 
structed,   or   hereafter   to    be    con- 
structed is  laid  or  may  pass  over 
said    land."       This    easement    was 
claimed     to     make     it     reasonable 
doubtful  whether  the  vendor  could 
give   a   title   free   from   all   encum- 
brances, and  therefore  be  marketa- 
ble.    The   easement   depended    on 
the  fact  of  the  then  location  of  the 
line;   and  as  there  is,  as  the  case 
shows,  no  doubt  that  no   line  had 
then  been  located,  and  as  the  mat- 
ter appears  to  be  easily  and  readily 
proved  at  any  time,  the  clause  does 
not  make  the  grantee's  title  unmar- 
ketable.   If  the  doubt  raised  a  ques- 
tion of  law,  it  must  be  a  fairly  de- 
batable  one,   one   upon  which  the 
judicial  mind  would  hesitate  before 
deciding  it.     If  the  doubt  depended 
on  a  matter  of  fact,  and  there  is 
no  doubt  as  to  how  the  fact  is,  and 
If    it    may    be    readily    and    easily 
shown  at  any  time,  it  does  not  make 
the   title    unmarketable. 

Townshend  v.  Goodflelow,  40 
Minn.  312,  41  N.  W.  1056,  12  A.  S. 
R.  736,  3  L.  R.  A.  739.  The  vendor 
in  this  case  was  a  subpurchaser. 
The  executors  of  an  estate  had 
sold  certain  lands  to  a  party  by  the 


name   of   Mesick  on   an   executory 
contract  of  sale,  who  in  turn  made 
out  an  executory  contract  of  sale 
to  the  vendor  under  the  contract  in 
issue  in   this   case.     It   is   claimed 
that  under  the  will   the   executors 
had  no  power  to  enter  into  the  con- 
tract with  Mesick.     If  this  is  true 
the  vendor  cannot  transfer  to  the 
defendant  a  title  free  from  reason- 
able  doubt   and  can  only   transfer 
one  which  might  be  subject  to  liti- 
gation later.     Held  that  the  vendee 
is  entitled  to  a  title  free  from  any 
reasonable    chances    as    to    future 
litigation,    that   under   the    circum- 
stances of  this  case  the  plaintiff  is 
unable    to    give    such    a    title    and 
therefore  the  title  is  unmarketable. 
Howe   v.    Coates,   et   al.,    97    Minn. 
385,  107  N.  W.  397,  114  A.  S.  R.  723, 
4  L.  R.  A.   (N.  S.)   1170.     The  con- 
tract in  this  case  provided  that  the 
vendor  should   furnish  the  vendee 
with   an  abstract  within  a  certain 
time   showing  a   good   title  in   the 
vendor.      The     abstract    furnished 
showed  that  a  previous  lease  and 
also  a  contract  of  sale  against  the 
property,    but    did    not    show    that 
said   lease   and   contract  had   ever 
been  withdrawn.    It  was  contended 
that  the  title  was  clear  in  fact  and 
that  affidavits  could  be  produced  as 
proof  showing  that  said  lease  and 
contract  had  been  withdrawn   and 
that  they  were  no  longer  an  encum- 
brance to  the  title.    Held  that  the 
vendor  could  not  give  a  marketable 
title,  as  the  contract  provided  for 
an  abstract  showing  a  marketable 
title,  and  this  not  being  furnished, 


§78] 


CORRECTING    DEFECTS    IN    THE   TITLE 


153 


proof  of  a  marketable  title  in  fact 
Is  not  sufficient.  The  contract  was 
construed  and  held  to  call  for  a 
marketable  record  title. 

Howe  v.  Coates,  et  al.,  supra.  A 
title  open  to  reasonable  doubts  is 
not  marketable,  and  the  court  can 
not  make  it  so  by  passing  upon  an 
objection  depending  upon  a  dis- 
puted question  of  fact,  or  a  doubt- 
ful question  of  law,  in  the  ab- 
sence of  the  party  in  whom  the  out- 
standing right  or  claim   is  vested. 

Howe  v.  Coates,  et  al.,  supra.  A 
title  to  real  estate  is  not  marketa- 
ble when  so  defective  as  to  effect 
the  value  of  the  land  or  interfere 
with  Its  sale. 

Moore  v.  Williams,  115  N.  Y.  586. 
22  N.  E.  233,  12  A.  S.  R.  844,  5 
L.  R.  A,  654.  The  vendee  in  this 
case  refused  to  perform  his  part  of 
the  contract  and  accept  a  deed  be- 
cause of  a  judgment  that  had  been 
rendered  against  the  vendor  and 
apparently  was  a  lien  against  the 
property  which  the  vendor  con- 
tracted to  sell  to  the  vendee.  It  is 
claimed  on  behalf  of  the  vendor 
that  although  he  held  said  land  in 
his  own  name,  it  was  in  reality  the 
property  of  a  firm  and  that  it  had 
been  deeded  to  him  in  trust  for 
the  purpose  of  sale,  and  that  as 
a  result  the  judgment  against  the 
vendor  cannot  be  a  lien  on  the  land. 
Held  that  the  vendor  could  not  give 
such  a  title  as  the  vendee  was  en- 
titled to.  He  could  not  give  a  mar- 
ketable title. 

Vought  v.  Williams,  120  N.  Y.  253, 
24  N.  E.  195,  17  A.  S.  R.  634,  8  L.  R. 
A,  591.  In  this  case  there  was  an 
outstanding  right  in  the  land  con- 
tracted to  be  sold  by  one  who  had 
left  home  24  years  before,  being  at 
the  time  23  years  of  age,  unmarried 


and  in  feeble  health,  and  very  dis- 
sipated, and  who  was  seen  shortly 
after  in  destitute  circumstances, 
and  never  heard  from  again,  and  it 
further  appears  that  no  opposing 
title  has  ripened  by  adverse  pos- 
session. The  vendee  claims  that 
these  facts  place  a  reasonable  doubt 
upon  the  title  and  therefore  the 
vendor  cannot  give  a  marketable 
title.  Vendor  contends  that  the 
failure  to  hear  from  the  one  claimed 
to  have  an  outstanding  right  in  the 
land  for  a  period  of  24  years  raises 
a  presumption  of  death  and  there- 
fore removes  any  doubt  upon  the 
title.  It  has  previously  been  held 
in  this  court  that  where  the  owner 
of  the  outstanding  title  has  not 
been  heard  from  for  a  period  of  40 
years  that  the  presumtion  of  death 
exists,  Ferry  v.  Sampson,  112  N.  Y. 
415,  20  N.  E.  387.  But  under  a  con- 
tract for  a  first-class  title,  the  ab- 
sence of  the  owner  of  an  outstand- 
ing interest  for  a  period  of  23  years 
and  not  having  been  heard  from 
within  that  time  is  not  sufficient  to 
clear  the  title  from  a  reasonable 
doubt  so  that  the  vendor  can  give 
a  marketable  title. 

Herman  v.  Somers,  158  Pa.  St. 
424,  27  Atl.  1050,  38  A.  S.  R.  851. 
In  a  contract  for  the  sale  of  prop- 
erty, a  provision  that  it  shall  be 
free  from  all  liens  and  encum- 
brances, and  that  the  hand  money 
shall  be  refunded  if  title  should  not 
prove  good  on  examination  of  rec- 
ords, or  cannot  be  made  good,  is 
equivalent  to  a  covenant  to  convey 
a  marketable  title.  In  equity  a 
marketable  title  is  one  in  which 
there  is  no  doubt  involved,  either 
as  law  or  fact.  Every  title  is  doubt- 
ful which  invites  or  exposes  the 
party   holding   it   to   litigation.      If 


154 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


there  be  color  of  outstanding  title, 
which  may  prove  substantial, 
though  there  is  not  enough  in  evi- 
dence to  enable  the  chancellor  to 
6ay  so,  a  purchaser  will  not  be  held 
to  take  it,  and  encounter  the  haz- 
ard of  litigation. 

Williams  v.  Bricker,  et  al.,  83 
Kan.  53,  109  Pac.  998,  30  L.  R.  A. 
(N.  S.)  343.  A  will  provided  that 
a  life  estate  should  be  given  to 
testator's  wife,  and  the  remainder 
to  the  four  children,  providing  that 
if  any  of  the  four  children  should 
die  before  the  life  estate  was  termi- 
nated, the  share  of  such  deceased 
child  shall  go  to  such  decedent's 
children,  and  if  there  are  no  chil- 
dren then  to  be  divided  equally 
between  the  remaining  children  of 
the  testator.  The  widow  and  the 
four  children  joined  in  giving  a 
warranty  deed  to  the  vendor  in  this 
case.  Before  the  widow  of  the  tes- 
tator died  one  of  the  children  died, 
leaving  heirs.  It  is  contended  that 
the  vendor  can  give  a  good  mar- 
ketable title  to  the  property. 

A  title  need  not  in  fact  be  had 
in  order  to  make  it  unmarketable. 
The  question  is  whether  a  reason- 
ably prudent  man,  familiar  with 
the  facts  and  apprised  of  the  ques- 
tion of  law  involved,  would  accept 
the  title  in  the  ordinary  course  of 
business;  nor  is  it  enough,  even, 
that  the  court  on  the  whole  con- 
sider it  good.  If  there  be  doubt  or 
uncertainty  sufficient  to  form  the 
basis  of  litigation,  the  title  is  un- 
marketable. 

In  an  action  to  recover  back  pur- 
chase money  for  the  failure  of  the 
vendor  to  comply  with  an  agree- 
ment to  furnish  a  marketable  title, 
where  the  parties  whose  possible 
claims  may  affect  the  title  are  not 


before  the  court,  the  question  of 
law  upon  which  the  title  turns  will 
not  be  determined,  but  the  title 
will  be  deemed  unmarketable  if  the 
question  is  one  upon  which  it  is 
apparent  that  other  courts  might 
entertain  a  different  opinion. 

Allen  v.  Pockwitz,  103  Cal.  85,  36 
Pac.  1039,  42  A.  S.  R.  99.  In  this 
case  the  contract  of  sale  provided 
that  the  title  should  be  accepted  or 
rejected  by  the  vendee's  attorney. 
It  was  contended  that  if  the  title 
was  in  fact  good  and  marketable 
the  vendee  should  be  compelled  to 
accept  the  land  regardless  of  the 
opinion  as  to  the  title  by  the  ven- 
dee's attorney.  Held  that  the  fact 
as  to  whether  the  title  was  in  fact 
marketable  is  not  to  be  considered, 
that  the  vendee  had  a  right  to  act 
upon  the  opinion  of  his  attorney 
as  to  whether  the  title  was  mar- 
ketable. 

Close  v.  Stuyvesant,  132  111.,  607, 
24  N.  E.  868,  3  L.  R.  A.  161.  It  was 
claimed  in  this  case  that  the  ven- 
dor had  obtained  his  interest  in  the 
land  in  controversy  through  de- 
frauding the  United  States  govern- 
ment under  the  pre-emption  and 
homestead  law.  The  lands  were 
entered  under  this  law  by  several 
men  who  had  previous  to  receiving 
their  certificates  from  the  local 
land  office,  arranged  with  the  ven- 
dor to  transfer  said  lands  to  him. 
This  is  prohibited  by  said  laws  and 
was  null  and  void.  Held  that  ven- 
dor could  not  give  a  good  and  mar- 
ketable title.  It  is  not  necessary 
that  the  defendant  in  an  action  for 
specific  performance  prove  actual 
fraud  on  the  part  of  the  vendor  in 
securing  his  title,  it  is  sufficient 
to  prove  that  the  vendor  could  not 
give   a   title   free   from    reasonable 


§78] 


CORRECTING    DEFECTS    IN    THE   TITLE 


155 


doubt,  and  could  only  give  such 
title  as  may  be  the  subject  of  fu- 
ture litigation. 

Smith  v.  Hunter,  241  Til.  514,  89 
N.  E.  686,  132  A.  S.  R.  231.  In 
specific  performance  the  abstract 
of  title  must  be  held  not  to  show 
good  merchantable  title,  where  It 
shows  a  decree  reforming  a  deed 
less  than  three  years  before  the 
time  fixed  for  consummating  the 
sale  but  fails  to  show  that  the 
court  acquired  jurisdiction  of  a  nec- 
essary party  to  the  proceeding  in 
such  manner  as  to  bar  his  right 
to  come  in,  under  Sec.  19  of  the 
Chancery  act,  and  petition  to  open 
the  decree  and  defend  the  suit  to 
reform  the  deed. 

Where  the  vendor  in  a  contract 
for  the  sale  of  land  has  agreed  to 
furnish  an  abstract  of  title  showing 
good  merchantable  title  in  him,  all 
the  vendee  need  to  do  to  defeat  a 
bill  by  the  vendor  for  specific  per- 
formance is  to  show  that  the  title 
which  the  vendor  was  prepared  to 
convey  was  doubtful  in  character. 

Attebery  v.  Blair,  244  111.  363,  91 
N.  E.  475,  135  A.  S.  R.  231.  Pur- 
chaser contracted  for  a  good  title, 
free  and  clear  from  encumbrances 
and  that  such  title  shall  be  shown 
by  the  abstract  of  title.  It  is  con- 
tended by  the  purchaser  that  the 
vendor  cannot  give  a  good  title  as 
the  abstract  does  not  show  that 
certain  mortgages  made  seventy 
years  ago  were  released  of  racord; 
that  certain  mortgages  and  dHeds 
do  not  show  on  the  record  as  to 
whether  the  grantors  were  married 
or  not;  that  the  abstract  does  not 
show  whether  the  deeds  and  mort- 
gages were  acknowledged,  etc.  It 
is  not  implied  that  an  abstract 
should  show  matters  not  of  record, 


nor  all  the  facts  and  circumstances 
connected  with  the  conveyances 
which  might  affect  the  title.  An  ab- 
stract of  title  Bhould  contain  a  sum- 
mary of  all  grants,  conveyances, 
wills,  and  all  records  of  judicial 
proceedings  whereby  the  title  is 
in  any  way  affected,  and  all  en- 
cumbrances and  liens  of  record, 
showing  whether  they  have  been 
released  or  not,  and  should  show 
all  such  facts  or  record  as  may  im- 
pair the  title. 

An  obligation  to  furnish  an  ab- 
stract of  title  showing  a  good  title, 
free  and  clear  from  encumbrances 
is  fulfilled  if  the  abstract  furnished, 
in  connection  with  the  rules  of  law 
applicable  to  the  conveyances  and 
with  evidence  of  facts  and  circum- 
stances explanatory  of  the  records, 
shows  such  a  title. 

Imperfections  in  abstract  of  title 
may  be  cured  by  affidavits.  Imper- 
fections in  an  abstract  of  title,  such 
as  a  failure  to  show  who  were  the 
heirs  of  a  party,  whether  a  grantor 
was  married  or  single,  whether  the 
name  of  a  grantee  was  misspelled 
and  what  persons  were  intended 
where  initials  were  given,  may  be 
cured  by  affidavits  showing  the 
facts. 

Meyer  v.  Madreperla,  68  N.  J.  L. 
258,  53  Atl.  477,  96  A.  S.  R.  536.  This 
was  an  action  by  the  vendee  to  re- 
cover back  money  paid  on  the  pur- 
chase price  as  provided  in  a  land 
contract,  on  the  ground  that  the 
vendor  cannot  give  a  good  mar- 
ketable title.  It  is  claimed  that  in 
the  chain  of  title  a  party  by  the 
name  of  Patrick  McDermott  if  alive 
would  have  an  interest,  although 
very  small,  in  the  property.  It  is 
claimed  on  the  other  hand  that 
as  this  party  has  been  away  from 


156 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


home  for  more  than  seven  years 
and  has  not  been  heard  from  dur- 
ing that  period  that  under  the  law 
a  presumption  of  death  exists,  and 
therefore  the  interest  that  Mr.  Mc- 
Dermott  would  have  in  the  prop 
erty  if  alive,  is  because  of  such 
presumption  only  a  possibility  and 
not  a  probability.  In  order  to  de- 
feat the  performance  of  a  land  con- 
tract because  of  defect  in  the  title 
it  is  necessary  to  show  a  moral  cer- 
tainty that  the  party  entitled  to  the 
interest  may  appear  and  claim  the 
interest.  For  it  is  impossible  in  the 
nature  of  things  that  a  title  can 
be  shown  to  be  good  beyond  a 
mathematical  certainty.  The  court 
must  govern  itself  by  a  moral  cer- 
tainty and  not  by  a  methematical 
certainty.  It  is  held  that  the  pos- 
sible future  claim  which  Mr.  Mc- 
Dermott  may  have  if  he  should  ap- 
pear is  not  sufficient  to  defeat  the 
contract  of  sale. 

The  court  points  out  here  that 
in  a  court  of  equity  for  the  specific 
performance  of  this  contract  that 
the  title  might  be  held  to  be  unmar- 
ketable, but  as  the  Court  of  Law 
and  Court  of  Equity  in  New  Jersey 
are  separate  the  law  court  is  not 
governed  by  principles  of  equity. 
This  is  different  in  most  states 
where   the  two   courts   are   united. 

Wesley  v.  Eells,  177  U.  S.  370, 
20  S.  Ct.  661,  44  U.  S.  (L.  Ed.)  810. 

Vendor  bought  the  property 
which  is  the  subject  of  this  suit 
from  the  State  of  South  Caro- 
lina. He  made  a  part  payment  and 
gave  a  mortgage  to  the  state  for 
the  balance.  Later  a  revenue  bond 
credit  slip  was  given  which  was 
contended  by  the  vendor  to  wipe 
out  the  mortgage.  The  act  of  the 
legislature  of  South  Carolina  under 


which  this  revenue  bond  credit  slip 
was  given  was  declared  unconsti- 
tutional by  the  Supreme  Court  of 
South  Carolina  as  being  in  viola- 
tion of  the  Federal  Constitution 
which  provides  that  no  state  shal 
emit  any  Bills  of  Credit.  The  ven- 
dee contends  that  under  this  deci- 
sion the  mortgage  has  not  been 
wiped  out  and  that  the  same  is 
still  an  encumbrance  upon  the  prop- 
erty. Held  that  this  question  is 
one  that  would  have  to  be  settled 
by  a  suit  against  the  State  of  South 
Carolina,  and  that  the  vendor  could 
not  give  the  vendee  a  title,  except 
one  that  would  be  subject  to  future 
litigation,  and  therefore  not  at  all 
marketable. 

Conley  v.  Finn,  171  Mass.  70,  50 
N.  E.  460,  68  A.  S.  R.  399.  It  was 
claimed  in  this  case  that  one  of  the 
former  owners  of  the  property 
which  was  the  subject  of  the  con- 
troversy in  this  action  gave  a  deed 
to  this  property,  that  was  neither 
acknowledged  or  recorded  until 
after  the  death  of  the  vendor  in  that 
transaction.  The  vendor  in  this 
suit  claims  title  through  the  vendee 
of  this  former  transfer. 

It  is  presumed  that  a  deed  is  de- 
livered at  the  time  of  its  date  and 
it  must  be  acknowledged  before  de- 
livery. Also  the  vendor  has  ob- 
tained title  by  adverse  possession. 
As  the  contract  did  not  provide  for 
a  good  title  of  record,  therefore  it 
was  held  that  the  vendor  could  give 
to  the  vendee  a  good  title. 

Irving  v.  Campbell,  121  N.  Y.  353, 
24  N.  E.  821,  8  L.  R.  A.  620.  A 
good  title  means  not  only  a  title 
valid  in  fact,  but  a  marketable  title 
that  can  again  be  sold  to  a  reason- 
able purchaser,  or  mortgaged  to  a 
person  of  reasonable  prudence. 


§78] 


CORRECTING    DEFECTS    IN    THE   TITLE 


157 


A  purchaser  will  not  generally  be 
compelled  to  take  a  title  where 
there  is  a  defect  in  the  record  title 
which  can  be  cured  only  by  a  re- 
sort to  parol  evidence,  and  there 
has  not  been  an  undisputed  adverse 
possession  for  a  time  sufficient  to 
give  title  thereby. 

Buchan  v.  German  American 
Land  Co.,  180  Iowa  911,  164  N.  W. 
119.  This  was  a  case  where  the 
contingent  interest  of  unborn  chil- 
dred  were  involved.  It  was  con- 
tended that  a  decree  of  a  court 
quieting  title  could  not  affect  the 
contingent  interest  of  unborn  chil- 
dren. On  this  question  the  court 
said:  "The  contingent  interest  of 
unborn  children  in  real  estate  may 
be  validly  cut  off  by  a  judgment  in 
a  good  faith  action  to  quiet  title. 
For  instance,  if  all  living  children 
who  are  interested  in  the  property 
are  brought  before  the  court,  and 
they  have  identically  the  same  in- 
terest which  an  after-born  child 
would  have,  then  a  decree  that  the 
living  children  have  no  interest  is 
binding  on  unborn  children,  on  the 
necessary  theory  that,  in  said  ac- 
tion, the  living  children  represent 
the  unborn.  So  held  where  the 
issue  in  an  action  to  quiet  title  was 
whether  a  devisee  took  a  fee  sim- 
ple title  or  whether  he  took  a  life 
estate  with  remainder  to  his  sur- 
viving children." 

"A  title  which  is  good  as  a  mat- 
ter of  law  is  not  rendered  unmar- 
ketable by  the  possibility  that  vex- 
atious litigation  might  be  insti- 
tuted in  relation  thereto,  nor  by 
the  fact  that  attorneys  had  ad- 
vised against  accepting  the  land  as 
security  for  a  loan." 

Batts  v.  Mallon,  151  Mass.  477,  25 
N.  E.  17,  7  L.  R.  A.  840.     Land  was 


conveyed  to  a  trustee  for  a  mar- 
ried woman  as  sole  beneficiary,  and 
to  his  successors  and  assigns;  he 
devised  it  to  his  wife  for  life,  with 
remainder  to  such  married  woman; 
and  she  survived  the  wife  and  de- 
vised it  to  her  daughters,  by  whom 
it  was  conveyed  to  a  third  person. 
Confirmatory  releases  were  given  to 
such  grantee  by  the  grantor  of  the 
original  trustee,  and  by  a  trustee 
duly  appointed  for  that  purpose  to 
succeed  the  latter;  and  the  trust  was 
then  terminated  upon  due  proceed- 
ings had.  Held,  that  the  grantee 
could  convey  a  title  good  beyond 
a  reasonable  doubt. 

Rife  v.  Lybarger,  49  Ohio  St.  422, 
31  N.  E.  768,  17  L.  R.  A.  403.  The 
only  cloud  upon  the  title  of  the 
land  was  an  uncancelled  mortgage 
made  contemporaneously  with,  and 
to  secure,  a  series  of  promissory 
notes,  which  notes  are  all  barred 
by  the  statute  of  limitations,  and 
which  mortgage,  the  mortgagee  be- 
ing dead,  his  estate  solvent  and 
finally  settled,  his  widow  and  heirs- 
at-law  released  by  a  quit  claim 
deed  of  the  premises,  made  to  the 
vendor  for  that  express  purpose. 
There  was  no  evidence  that  said 
notes  had  been  assigned  before  the 
quit  claim  deed  was  given.  Held, 
that  said  mortgage  is  no  cloud  upon 
the  title,  and  that  the  vendor  could 
give  a  good  marketable  title. 

Simis,  et  al.,  v.  McElroy,  160  N. 
Y.  156,  54  N.  E.  674,  73  A.  S.  R.  673. 
This  was  an  action  by  the  vendor 
against  the  vendee  in  a  land  con- 
tract for  damages  for  failure  to  per- 
form the  same.  It  Is  contended  on 
the  part  of  the  vendee  that  the 
vendor  cannot  give  a  good  and  mar- 
ketable title  to  the  land.  It  is  ad- 
mitted that  the  vendor  cannot  show 


158 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


a  good  title  in  him  of  record,  but 
claims  that  he  has  such  title  by  ad- 
verse possession. 

It  is  held  that  although  appar- 
ently the  vendor  has  good  title  by 
adverse  possession,  yet  as  the  own- 
ers of  record  are  not  parties  to 
this  action  they  cannot  be  pre- 
cluded in  a  future  action  from  set- 
ting up  matters  which  do  not  ap- 
pear in  this  case  that  would  shut 
off  the  claim  of  the  vendor  from 
his  right  to  claim  title  by  adverse 
possession.  Hence  the  vendee  would 
only  be  taking  a  title  which  may 
subject  him  to  future  litigation  over 
the  same.  Therefore  the  vendor 
cannot  give  a  marketable  title. 

Cummings  v.  Dolan,  52  Wash.  496, 
100  Pac.  989,  132  A.  S.  R.  986.  The 
abstract  showed  that  two  mort- 
gages existed  against  the  title, 
which  were  an  apparent  cloud  upon 
the  same.  The  vendee  refused  to 
accept  the  land  because  of  this 
cloud.  The  holder  of  the  mortgages 
gave  the  vendor  quit-claim  deed  to 
the  same  which  would  bar  any  fu- 
ture claim  to  the  property  under 
the  mortgages.  Affidavits  were  also 
given  for  the  purpose  of  showing 
that  the  mortgages  were  not  origin- 
ally intended  to  cover  the  property 
sold  under  the  contract,  but  through 
a  clerical  error  the  mortgages  ap- 
parently covered  the  property.  The 
fact  was  that  the  mortgages  were 
not  intended  to  be  a  cloud  upon 
the  chain  of  title  to  the  land  cov- 
ered by  the  contract.  Held  that 
the  vendor  could  give  a  marketable 
title.  A  contract  for  a  marketable 
title  only  calls  for  one  that  is  rea 
sonably  free  from  doubt. 

Simon,  et  al.  v.  Vanderveer,  155 
N.  Y.  377,  49  N.  E.  1043,  63  A.  S.  R. 
683.    This  was  an  action  to  recover 


the  price  paid  on  a  land  contract 
on  the  ground  that  the  vendor  can- 
not give  a  marketable  title.  A  lis 
pendens  had  been  filed  against  the 
property  sold.  It  was  held  that  al- 
though the  action  upon  which  the 
lis  pendens  was  filed  would  not 
have  been  a  lien  upon  the  property, 
the  contract  upon  which  such  ac- 
tion was  based  was  not  produced  by 
the  vendor,  and  that  it  was  not 
incumbent  upon  the  vendee  to 
search  the  records  to  satisfy  him- 
self as  to  the  nature  of  the  action. 
He  had  a  right  to  rely  upon  the  lis 
pendens. 

Evans  v.  Taylor,  177  Pa.  St.  286, 
35  Atl.  635,  69  L.  R.  A.  790.  In 
this  action  the  plaintiff  had  agreed 
to  give  the  defendant  a  good  title 
to  real  estate  free  and  clear  from 
encumbrances.  Through  this  land 
a  street  had  been  laid  by  the  city 
plan.  The  purchaser  is  supposed 
to  be  informed  of  any  streets  ac- 
tually existing  over  the  lands  or 
of  any  plans  on  record  for  the  fu- 
ture opening  of  any  and  therefore 
cannot  defend  in  an  action  for  the 
purchase  price  where  he  has  ac- 
cepted a  deed  or  done  any  act  in 
confirmation  of  the  contract.  But 
as  the  contract  in  this  case  was 
executory  and  the  purchaser  had 
done  nothing  in  confirmation  of  the 
same,  the  knowledge  which  he  pre- 
sumed to  have  as  to  street  plans 
over  the  property,  is  not  sufficient 
to  permit  the  plaintiff  to  recover 
the  purchase  money  where  he  has 
contracted  to  give  a  title  free  and 
clear  of  all  encumbrances. 

Kares  v.  Covell,  180  Mass.  206. 
The  vendor  had  given  a  bond  to 
convey  property  free  and  clear  of 
all  encumbrances.  After  this  bond 
was   made   about   a   fourth   of   the 


§78] 


CORRECTING    DEFECTS    IN    THE   TITLE 


159 


property  conveyed  was  taken  by 
the  City  of  New  Bedford  for  the 
widening  of  a  street.  It  was  claimed 
on  the  part  of  the  vendor  that  as 
the  taking  of  the  property  occurred 
after  the  giving  of  the  bond  that 
hie  Inability  to  transfer  the  whole 
of  the  land  is  not  a  breach  of  the 
bond.  Held  that  the  agreement  of 
the  bond  was  to  convey  a  title  free 
and  clear  of  all  encumbrances  at 
the  time  of  performance,  and  his 
Inability  to  do  so  is  a  breach  of  the 
covenant. 

Downey  v.  Seib,  185  N.  Y.  427, 
78  N.  E.  66,  113  A.  S.  R.  926,  8  L. 
R.  A.  (N.  S.)  49.  An  action  was 
brought  by  the  vendor  to  reform 
a  deed  of  the  real  estate  which  is 
the  subject  of  the  land  contract, 
by  which  deed  the  said  property 
was  conveyed  by  the  vendor's  fa- 
ther to  her.  The  father  intended 
to  give  the  daughter  an  absolute 
fee  simple  title  to  the  property,  but 
by  mistake  of  the  scrivener  a  life 
estate  only  was  given  with  a  re- 
mainder. The  vendor  made  her 
mother,  brothers  and  the  executor 
of  a  will  parties  defendant.  There 
was  no  contest  and  judgment  re- 
forming the  deed  as  prayed  was 
entered.  There  was  no  party  to 
this  action  representing  issue  un- 
born, and  therefore  any  future  is- 
sue of  the  vendor  would  not  be 
cut  off  by  the  action  to  reform  the 
deed  from  claiming  in  the  future 
their  rights  to  the  property. 

Held  that  the  vendor  could  not 
convey  a  marketable  title  to  the 
real  estate. 

Cross  v.  Buskirk-Rutledge  Lum- 
ber Co.,  139  Tenn.  79,  201  S.  W.  141. 
A  will  gave  the  wife  of  the  testator 
a  life  estate  in  certain  real  prop- 
erty,  and   In  the  same   instrument 


gave  the  executors  of  the  will  a 
power  of  sale  over  the  property. 
The  executors  sold  the  property  in 
question  to  the  vendor  in  the  pres- 
ent action.  The  vendor  contracted 
to  give  the  defendants  an  apt  and 
proper  deed  with  covenants  of  gen- 
eral warranty.  As  the  wife  or  her 
representative  is  not  a  party  to 
this  action,  this  action  cannot  bind 
her.  So  whether  the  title  is  good 
or  not  the  most  that  the  vendor  can 
do  is  to  give  the  defendant  a  title 
subject  to  future  litigation,  which 
would  not  be  a  marketable  title. 

Where  the  title  depends  upon  the 
existence  of  a  fact,  which  is  not 
a  matter  of  record,  and  the  fact 
depends  for  its  proof  entirely  upon 
oral  evidence,  the  case  must  be 
very  clear  by  the  vendor  to  war- 
rant the  court  in  ordering  specific 
performance. 

Fredman,  et  al.  v.  Oppenheim, 
187  N.  Y.  101,  79  N.  E.  841,  116  A. 
S.  R.  595.  Title  by  adverse  posses- 
sion clearly  established,  although 
by  parol  evidence,  is  a  marketable 
title;  and  where  it  appears  in  an 
action  to  compel  specific  perform- 
ance of  a  contract  to  exchange  real 
estate  that  the  plaintiffs  have  a 
record  title,  perfect  except  as  to 
two  defects,  which  were  not  con- 
sidered on  the  appeal  as  they  were 
not  in  the  record,  that  they  and 
their  predecessors  have  had  pos- 
session thereunder  for  a  period  of 
thirty-eight  years,  and  that  during 
that  entire  period  no  person  has 
made  any  claim  of  ownerhsip  to 
the  premises,  other  than  those  from 
whom  the  plaintiffs  derived  their 
title,  a  decree  based  upon  a  con- 
clusion of  law,  that  the  plaintiffs 
have  9  good  and  indefeasable  title 


160 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


to  the  premises  by  adverse  posses- 
sion,  is   properly   granted. 

Wanser  v.  DeNyse,  et  al.,  188  N. 
Y.  378,  80  N-  E.  1088,  117  A.  S.  R. 
871.  In  this  case  the  purchaser  bid 
in  the  property  at  a  judicial  sale, 
and  had  paid  a  part  of  the  pur- 
chase price.  Afterwards  he  found, 
upon  examination,  and  produced  af- 
fidavits which  showed  that  the  rec- 
ord title  to  said  premises  was  not 
clear. 

A  person  who  in  good  faith,  bids 
upon  real  property  at  a  judicial 
sale  where  the  particular  interest 
offered  is  not  expressly  offered,  has 
a  right  to  assume  that  he  is  to  re- 
ceive a  conveyance  of  the  fee,  and 
that  the  title  to  such  real  property 
is  marketable.  In  case  the  title  to 
such  real  property  is  not  marketa- 
ble such  fact  is  a  defense  to  a  mo- 
tion to  compel  the  purchaser  to 
complete  his  purchase  or  to  any 
other  proceeding  or  action  based 
upon  such  bid. 

The  following  New  York  cases 
are  cited  because  of  their  bearing 
on  the  question  of  marketable  title: 

In  the  case  of  Fleming  v.  Burn- 
ham,  100  N.  Y.  1,  10,  the  court  said, 
"A  title  open  to  reasonable  doubt 
is  not  a  marketable  title.  The  court 
cannot  make  it  such  by  passing 
upon  an  objection  depending  on 
a  disputed  question  of  fact  or  a 
doubtful  question  of  law,  in  the 
absence  of  the  party  in  whom  the 
outstanding  right  was  vested.  He 
would  not  be  bound  by  the  ad- 
judication and  could  raise  the  same 
question  in  a  new  proceeding.  The 
cloud  upon  the  purchaser's  title 
would  remain  although  the  court 
undertook  to  decide  the  fact  or  the 
law,  whatever  moral  weight  the  de- 
cision   might   have.      It   would    es- 


pecially be  unjust  to  compel  a  pur- 
chaser to  take  a  title,  the  validity 
of  which  depended  upon  a  question 
of  fact  where  the  facts  presented 
upon  the  application  might  be 
changed  upon  a  new  inquiry  or 
are  open  to  opposing  inferences. 
There  must  doubtless  be  a  real 
question  and  a  real  doubt.  But  this 
situation  existing  the  purchaser 
should  be  discharged." 

In  Heller  v.  Cohen,  154  N.  Y. 
299,  306,  the  court  in  stating  the 
rules  applicable  to  an  action  for 
specific  performance  say:  "To  en- 
title a  vendor  to  specific  perform- 
ance he  must  be  able  to  tender  a 
marketable  title.  A  purchaser  ought 
not  to  be  compelled  to  take  prop- 
erty, the  possession  of  which  he 
may  be  obliged  to  defend  by  litiga- 
tion. He  should  have  a  title  that 
will  enable  him  to  hold  his  land 
free  from  probable  claim  by  an- 
other and  one  that,  if  he  wishes 
to  sell,  would  be  reasonably  free 
from  any  doubt  which  would  inter- 
fere with  its  market  value.  If  it 
may  be  fairly  questioned,  speci- 
fic performance  will  be  refused." 
(Vought  v.  Williams,  120  N.  Y.  253, 
257;  Shriver  v.  Shriver,  86  N.  Y. 
575,  584;  Fleming  v.  Burnham,  100 
N.  Y.  1.) 

"So,  where  there  Is  a  defect  in 
the  record  title  which  can  be  sup- 
plied only  by  resort  to  parol  evi- 
dence and  the  title  may  depend 
upon  questions  of  fact,  the  general 
rule  is  that  the  purchaser  will  not 
be  required  to  perform  his  con- 
tract." (Irving  v.  Campbell,  121  N. 
Y.  353,  Holly  v.  Hirsch,  135  N.  Y. 
590,  598.) 

Sandum  v.  Johnson,  122  Minn. 
368,  142  N.  W.  878,  48  L.  R.  A.  (N. 
S.)   619.     The  existence  of  a  rural 


§78] 


CORRECTING    DEFECTS    IN    THE   TITLE 


161 


highway,  extending  across  land  con- 
veyed by  warranty  deed  of  the  form 
in  common  use,  does  not  constitute 
a  breach  of  the  covenants  usually 
contained  in  such  deeds. 

The  following  cases  hold  that  the 
existence  of  a  highway  over  a  piece 
of  land  in  a  rural  section  is  such 
an  encumbrance  on  the  land  as  to 
cause  a  breach  of  the  covenants  of 
warranty  in  a  deed: 

Kellogg  v.  Ingersoll,  2  Mass.  96; 
Hubbard  v.  Norton,  10  Conn.  422 
Ailing    v.    Burlock,    46    Conn.    504 
Herriclc    v.    Moore,    19    Me.    313 
Haynes  v.  Young,  36  Me.  557;  Lamb 
v.  Danforth,  59  Me.  322;   Butler  v. 
Gale,    27   Vt.    739;    Pritchar   v.   At- 
kinson, 3  N.  H.  335;  Haynes  v.  Stev- 
ens, 11  N.  H.  28;   Burk  v.  Hill,  4S 
Ind.    52;    Beach    v.    Miller,    51    111. 
206;  Kellogg  v.  Malin,  50  Mo.  496; 
Copeland  v.  McAdory,  100  Ala.  553. 

The  following  cases  hold  that 
the  existence  of  such  a  highway 
over  the  land  is  not  such  an  en- 
cumbrance as  to  cause  a  breach  of 
the  covenant  of  warranty: 

Memmert  v.  McKeen,  112  Pa.  St. 
315;  Patterson  v.  Arthurs,  9  Watts 
(Pa.)  152;  Howell  v.  Northampton, 
211  Pa.  St.  284;  Whitbeck  v.  Cook, 
15  John.  (N.  Y.)  482;  Huyck  v. 
Andrews,  113  N.  Y.  81;  Hymes  v. 
Estey,  116  N.  Y.  501;  133  N.  Y.  342, 
344;  Smith  v.  Hughes,  50  Wis.  620, 
627;  Kutz  v.  McKune,  22  Wis.  628; 
Pomeroy  v.  Chicago,  25  Wis.  641; 
Pick  v.  Rubicon,  27  Wis.  433,  442; 
Mead  v.  Hein,  28  Wis.  533,  537; 
Sabine  v.  Johnson,  35  Wis.  185,  201; 
Burbach  v.  Schweinler,  56  Wis.  386, 
390;  Milwaukee  v.  Strange,  63  Wis. 
178,  183;  McLennon  v.  Prentice, 
85  Wis.  427,  434;  Jordon  v.  Eve,  31 
Gratt.  (Va.)  1;  Deacons  v.  Doyle, 
75  Va.  258;  Trice  v.  Kayton,  84  Va. 


217;  Patton  v.  Quarrier,  18  W.  Va 
447;  Barre  v.  Fleming,  29  W.  Va. 
314;  James  v.  Jenkins,  34  Md.  1; 
Desvergers  v.  Willis,  56  Ga.  515  • 
Newmyer  v.  Roush,  21  Idaho  106; 
Schurger  v.  Moorman,  20  Idaho  97; 
Harrison  v.  Des  Moines,  91  Iowa 
114;  Stuhr  v.  Butterfield,  151  Iowa 
736;    Killen   v.    Funk,   83    Neb.    622. 

The  taking  of  a  city  lot  for  a 
highway  differs  from  the  taking  of 
rural  land  in  regard  to  the  question 
of  whether  such  taking  is  an  en- 
cumbrance on  the  land  as  to  cause 
a  breach  of  the  covenant  of  war- 
ranty. Smith  v.  Mellon,  116  Minn. 
198. 

Stuhr  v.  Butterfield,  151  Iowa  736, 
130  N.  W.  897,  36  L.  R.  A.  (N.  S.) 
321.  The  fact  that  the  board  of 
supervisors  had  ordered  the  con- 
struction of  a  drainage  ditch  is 
held  not  to  constitute  the  breach  of 
a  covenant  against  encumbrances 
in  a  deed  to  the  land  thereafter 
given. 

This  case  distinguishes  between 
highways  and  drainage  canals  on 
the  one  hand  and  railways  on  the 
other.  A  highway  and  drainage 
canals  are  a  direct  benefit  to  the 
land  over  which  they  flow  and  are 
essential  to  the  complete  enjoyment 
of  the  land,  and  therefore  are  not 
considered  an  encumbrance  on  the 
land.  A  railroad,  on  the  other 
hand,  is  not  of  especial  benefit  to 
the  land  over  which  it  runs,  but  is 
only  of  general  benefit  to  the  whole 
community.  Therefore  such  a  right 
of  way  for  a  railroad  would  be  an 
encumbrance  as  would  be  a  breach 
of  a  covenant  of  warranty  in  a 
deed. 

Blanck  v.  Sadlier,  153  N.  Y.  551, 
47  N.  E.  920,  40  L.  R.  A.  666.  This 
was    a    case    where    property    was 


162 


THE  LAW  OF  LAND  CONTRACTS 


[§78 


purchased  at  a  public  sale,  subject 
to  a  mortgage,  which  by  the  terms 
of  the  mortgage  was  to  be  paid  in 
gold.  At  the  time  of  the  purchase 
this  provision  was  not  known  by 
the  purchaser.  The  purchaser  sued 
for  the  recovery  of  the  purchase 
money  that  he  had  paid  down,  on 
the  ground  that  the  clause  in  the 
mortgage  making  the  same  payable 
in  gold  was  ua  impediment  on  the 
title. 

The  court  held  that  the  absence 
in  the  contract  of  sale  of  the  me- 
dium in  which  said  mortgage  was 
to  be  paid  did  not  imply  a  contract 
to  pay  in  any  currency  that  was 
legal  tender.  Therefore  such  clause 
in  the  mortgage  did  not  constitute 
a  breach  of  the  contract  by  being 
a  defect  in  the  title. 

A  strong  dissenting  opinion  in 
this  case  was  rendered  which  held 
that  the  absence  of  any  provision 
in  a  contract  as  to  the  medium  in 
which  the  purchase  price  of  land 
or  a  mortgage  is  to  be  paid  implied 
a  contract  that  the  same  was  to 
be  paid  in  general  legal  tender  cur- 
rency. Therefore  the  vendor  is  not 
able  to  comply  with  the  terms  of 
the  contract  and  the  vendee  should 
be  allowed  to  recover. 

Justice  v.  Button,  et  al.,  89  Neb. 
367,  131  N.  W.  736,  38  L.  R.  A.  (N. 
S.)  1.  A  trust  deed  placed  upon 
the  property  to  secure  a  debt  con- 
stitutes a  defect  in  the  title,  not- 
withstanding the  fact  that  the  stat- 
ute of  limitations  have  run,  and 
that  the  land  has  been  held  by  ad- 
verse possession  for  the  length  of 
time  as  provided  by  law.  As  against 
the  title  itself  this  would  be  suf- 
ficient to  remove  the  defect,  but  the 
courts  are  more  tender  in  applying 
the  law  of  adverse  possessions  as 


against  trust  deeds  and  mortgages 
given  to  secure  debts. 

A  good  title  is  one  that  can  be 
sold  to  a  reasonably  prudent  man 
who  might  desire  the  property,  or 
a  title  that  can  be  mortgaged  to  a 
person  of  reasonable  prudence  as 
security  for  the  loan  of  money. 

Baldwin  v.  Trimble,  85  Md.  396, 
37  Atl.  176,  36  L.  R.  A.  489.  While 
an  encroachment  on  a  public  high- 
way is  a  public  nuisance  which 
can  never  grow  by  prescription  into 
a  private  right,  yet  there  are  cases 
where,  when  the  use  of  a  high- 
way has  been  totally  abandoned 
by  the  public  and  private  rights 
have  grown  up  in  consequence  of 
such  abandonment,  an  equitable  es- 
toppel is  created  against  the  public 
to  assert  a  right  to  the  use  of  the 
highway,  and  is  not  an  impediment 
on  the  title. 

Where  a  deed  has  been  given  to 
secure  the  payment  of  certain 
promissory  notes,  and  since  the 
right  to  foreclose  a  mortgage  is 
barred  by  the  lapse  of  twenty  years 
and  since  there  has  been  no  rec- 
ognition of  the  deed  as  a  subsist- 
ing lien,  the  existence  of  such  a 
deed  is  not  a  cloud  on  the  title  of 
parties  to  whom  the  land  was  sub- 
sequently conveyed  by  the  same 
grantor. 

Gregory  v.  Knight,  50  Mich.  61. 
Long  practical  acquiescense  as  be- 
tween the  public  and  a  private 
owner  as  to  the  true  line  of  the  lat- 
ter's  fence  along  the  highway  will 
bind  the  public. 

Brewer  v.  Herbert,  30  Md.  301, 
96  Am.  Dec.  582.  Where  a  con- 
tract is  made  for  the  sale  of  house 
and  lot,  and  before  the  contract 
has  been  performed  the  house  was 
accidentally  burned  down,  this  does 


§  78]  CORRECTING   DEFECTS    IN    THE   TITLE  163 

not  create  any  defect  in  the  title,  the   trustee  of  the   vendor  for   the 

and  the  same  is  no  defense  to  an  balance  of  the  purchase  money.  The 

action   on   the   part  of   the   vendor  vendee    has    an    insurable    interest 

for  specific  performance.     The  ven-  in  the  property  and  it  is  his  fault 

dor  is  the  trustee  of  the  vendee  for  if  he  has  not  the  same  protected  by 

the    property    and    the    vendee    is  an  insurance. 


CHAPTER  VI 

REMEDYING  DEFECTS  IN  THE  TITLE 
THE  ACTION  TO  QUIET  TITLE 

§  79.  Quieting  the  Title. 

§  80.  Equity  Pleading  and  Practice — Modern  Changes. 

§  81.  Bill  of  Complaint — Statutory  Provisions. 

§  82.  Quieting  the  Title— Outstanding  Tax  Titles. 

§  83.  Statutory  Provisions — Parties  Unknown  Defendants. 

§  84.  Substituted  Service — Unknown  Defendants  Appointing  Guardian  Ad 
Litem. 

§  85.  Parties  Not  to  Be  Joined  as  Unknown  Defendants  Unless  Fifteen 
Years  Have  Elapsed. 

§  86.  The  Action  to  Quiet — Miscellaneous  Michigan  Decisions. 

§  87.  Bill  of  Complaint  to  Quiet  Title  Because  of  Outstanding  Tax  Titles, 
Misdescription  of  the  Premises,  Failure  to  State  the  Marital 
Status  of  Certain  Grantors,  Containing  Averments  Necessary 
in  the  Case  of  Unknown  Heirs,  Legatees  and  Devisees. 

§  88.  Decree  Quieting  Title  Because  of  Outstanding  Tax  Titles,  Mis- 
descriptions of  the  Premises,  Failure  to  State  the  Marital  Status 
of  Certain  Grantors. 

§  89.  Decree  to  Quiet  Title — Cancel  Land  Contract. 

§  90.  Effect  of  Decree. 

§  91.  Bill  of  Complaint  to  Cancel  Land  Contract  After  Forfeiture. 

§  92.  Bill  of  Complaint  Form  to  Quiet  Title— Cloud  Created  by  Quit-Claim 
Deed  by  Vendee. 

§  93.  Bill  of  Complaint  to  Quiet  Title  to  an  Easement. 

§  94.  The  Pleadings  and  Briefs  in  Late  Michigan  Cases,  Notes. 

§  79.  Quieting  the  Title. — An  action  to  quiet  title  is  the 
appropriate  remedy  to  remove  clouds  on  the  title  to  real  estate, 
to  set  aside  and  cancel  deeds  or  other  instruments  of  record 
which  encumber  or  cloud  the  title;  in  short  to  eliminate  the 
usual  and  ordinary  defects  which  occur  in  the  record  title  to 
real  estate.1 

1.  Security     Investment     Co.     v.  Miller,  159  Mich.  337;  King  v.  Car- 

Meister,   214   Mich.   337;    Mopre   v.  penter,  159  Mich.  337;   Casgrain  v. 

Prevost,    205    Mich.    687;    Farr    v.  Hammond,   134   Mich.   419;    Day  v. 

Childs,  204  Mich.  20;   Grand  Trunk  Davey,  132  Mich.  173. 
v.  Fuller,  205  Mich.  486;  Nesbitt  v 


§  79  I  REMEDYING   DEFECTS  IN  THE  TITLE  165 

The  following  principles  in  relation  to  this  remedy  are 
well  settled: 

(a)  The  action  may  now  be  brought  by  the  plaintiff  hold- 
ing either  legal  or  equitable  title  to  lands  whether  in  pos- 
session or  not,  against  any  other  person  not  in  possession. 
Under  a  former  statute  the  action  could  not  be  maintained 
by  one  out  of  possession  of  the  real  estate,  but  the  statute 
now  in  force  authorizes  the  action  by  such  person.2 

(b)  The  plaintiff  must,  if  he  prevails,  do  so  on  the  strength 
of  his  own  title,  and  if  he  has  none,  he  is  not  in  a  position 
to  attack  that  set  up  by  another,  even  though  he  be  in 
possession.3 

(c)  Where  the  plaintiff  claims  a  legal  record  title,  and  does 
not  allege  any  fraud,  accident,  mistake,  or  other  grounds  of 
general  equity  jurisdiction,  nor  point  out  any  impediment  to 
their  defense,  in  an  action  of  ejectment  which  is  already 
pending,  a  bill  to  quiet  title  will  not  lie,  because  the  underly- 
ing reason  which  permits  the  action  to  quiet  title  to  be  filed 
against  adverse  claimants  out  of  possession,  is  that  they 
cannot  be  brought  into  court  by  the  action  of  ejectment.4 

(d)  A  bill  to  quiet  title  will  be  entertained  on  behalf  of 
the  legal  owner  when  he  is  not  in  a  position  to  force  the  ad- 
verse claimant  into  a  court  of  law  to  test  its  validity,  but  when 

2.  "The  powers  and  jurisdiction  against  any  other  person  not  in 
of  the  circuit  courts  and  circuit  possession,  setting  up  a  claim  there- 
judges  in  chancery  in  and  for  their  to  in  opposition  to  the  title  claimed 
respective  counties,  shall  be  co-ex-  by  the  plaintiff;  and  if  the  plaintiff 
tensive  with  the  powers  and  juris-  shall  establish  his  title  to  such 
diction  of  the  courts  and  judges  lands,  the  defendant  shall  be  de- 
in  chancery  in  England  as  existing  creed  to  release  to  the  plaintiff  all 
on  March  first,  eighteen  hundred  claims  thereto." 
forty-seven,  with  the  exceptions,  ad-  Section  12302,  3  Comp.  Laws  1915. 
ditions,  and  limitations  created  and  3.  Wilhelm  v.  Herron,  211  Mich, 
imposed  by  the  constitution  and  339;  Vincent  v.  Evans,  165  Mich, 
laws  of  this  state.  Said  Circuit  695;  Malliatt  v.  Vogel,  125  Mich. 
Court  in  chancery  shall  also  have  291;Horton  v.  Helmholtz,  149  Mich, 
jurisdiction  and  authority.    •    •     •  227,  Malliat  v.  Vogel,  125  Mich.  291. 

To  hear  and  determine  suits  in-  4    carpenter     v.     Dennison,     208 

stituted    by    any    person    claiming  441;  Moody  v.  McComber,  158  Mich, 

the  legal  or  equitable  title  to  lands,  209;  Berger  v.  Roe,  179  Mich.  184; 

whether     in     possession     or     not,  Chandler  v.  Graham,  123  Mich.  327 


166  THE  LAW  OF  LAND  CONTRACTS  [§  79 

each  party  claims  the  legal  title,  and  a  court  of  law  is  already 
possessed  of  the  case,  and  it  is  not  alleged  that  either  fraud, 
accident,  or  mistake  has  intervened  to  prevent  the  possessor 
establishing  his  title  at  law,  equity  will  not  interfere.5 

(e)  If  the  plaintiff  claims  by  virtue  of  tax  deed,  he  must 
show  the  validity  of  the  proceedings  on  which  the  deed  is 
based,  including  the  mailing  of  all  notices  required  by  law  in 
connection  therewith,  and  the  burden  of  proof  is  on  him  to 
show  that  every  statutory  step  has  been  taken  which  the 
law  requires,  as  the  tax  deed  is  not  of  itself  prima  facie  evi- 
dence of  title.6 

(f)  Where  the  bill  of  complaint  shows  that  the  defendant 
is  in  possession,  equity  will  have  no  jurisdiction,  the  remedy 
being  at  law.7 

(g)  It  does  not  matter  how  the  plaintiff  acquired  title, 
whether  by  adverse  possession  or  otherwise,  if  he  holds  either 
the  legal  or  equitable  title  to  the  property,  that  is  sufficient, 
nor  does  it  matter  whether  the  plaintiff  took  possession  of 
said  property  under  a  color  of  title.  If  he  has  occupied  the 
same  for  the  full  statutory  period  that  will  be  sufficient.8 

§  80.  Equity  Pleading  and  Practice — Modern  Changes. — The 

equity  pleadings  incorporated  in  this  treatise  have  been  studi- 
ously made  as  brief  as  possible  to  conform  to  the  letter  and 
spirit  of  the  Judicature  Act  and  of  the  Rules  of  the  Supreme 
Court  promulgated  under  that  act,  by  virtue  of  which  laws 
and  rules  it  is  provided  that  the  pleading  shall  contain  only 
a  concise  statement  of  fact  without  repetition,  and  that  all 
equity  pleadings  shall  be  as  brief  as  the  case  will  permit,  and 
shall  not  state  facts  of  which  the  court  takes  judicial  notice, 
nor  any  statement  not  required  to  be  proved  except  where 
specially  required  by  rule  or  statute.9 

5.  Carpenter  v.  Dennison,  208  173;  Doland  v.  Smith,  147  Mich. 
Mich.  445.  276;    Timken   v.    Piper,    141    Mich. 

6.  Taylor  v.  DeVoe,  100  Mich.  581;  95;  Warren  v.  Warren,  151  Mich. 
Dawson  v.  Peter,  119  Mich.  610;  402:  Miscotten  v.  Helenthal,  162 
Morris  v.  Auditor-General,  143  Mich.  Mich.  402. 

610;    Vincent  v.   Evans,   15o   Mich.  8.  Vier  v.  Detroit,  111  Mich.  646; 

695;   Morris  v.  Summer,  164  Mich.  Campau  v.  Lafferty,  50  Mich.  114; 

208.  Horton  v.  Helmholtz,  149  Mich.  227. 

7.  Seymour    v.    Rood,    121    Mich.  9.  Sec.     2. — All     pleadings     must 


§80] 


REMEDYING   DEFECTS  IN  THE  TITLE 


167 


It  is  further  provided  that  no  longer  is  it  necessary  to  set 
forth  a  written  instrument  relied  upon  in  the  body  of  the 
pleading,  but  it  shall  be  sufficient  if  a  copy  thereof  shall  be 
attached  to  the  pleading  as  an  exhibit,  which  exhibit  shall  be 
deemed  a  part  of  the  pleading,  and  if  the  written  instrument  is 
one  the  form  of  which  is  prescribed  by  statute,  it  need  neither 
be  set  forth  in  the  pleading  nor  attached  as  an  exhibit. 

Other  changes  in  equity  pleading  and  practice  are  that  the 
term  "Solicitor  in  Chancery"  has  now  become  obsolete,  the 
correct  designation  of  all  lawyers  practicing  before  courts  of 
record  in  this  state  is  "Attorney  and  Counsellor."10 

Replications  have  now  been  abolished.11 


contain  a  plain  and  concise  state- 
ment without  repetition  of  the  facts 
on  which  the  pleader  relies  in  stat- 
ing his  cause  of  action  or  defense 
and  no  others.  Each  count  or  divi- 
sion of  a  pleading  shall,  so  far  as 
practicable,  be  divided  into  para- 
graphs consecutively  numbered, 
each  containing  as  near  as  may  be, 
a  separate  allegation.  Dates,  sums, 
and  numbers  may  be  expressed  in 
either  figures  or  in  words. 

Sec.  3. — Pleadings  shall  be  as 
brief  as  the  nature  of  the  case  will 
admit  and  shall  not  state  facts  of 
which  the  courts  take  judicial  no- 
tice, nor  matters  of  evidence,  and 
no  pleading  shall  set  forth  any 
statement  not  required  to  be 
proved,  except  where  specially  re- 
quired by  rule  or  statute.  Plead- 
ings substantially  similar  to  the 
forms  annexed  to  these  rules  will 
be  deemed  suitable  and  sufficient, 
where  the  same  are  applicable. 

Sec.  4. — In  pleading  a  judgment, 
or  the  decision  of  a  court  or  of 
an  officer  or  a  board  of  special 
jurisdiction,  it  shall  be  sufficient 
to  allege  generally  that  judgment 
or  decision  was  duly  given  or  made. 


Sec.  5. — In  pleading  the  perform- 
ance of  a  condition  precedent  in 
a  contract,  it  shall  be  sufficient 
to  allege  generally  that  the  party 
performed  all  the  conditions  on  his 
part;  if  the  allegations  be  denied, 
the  facts  showing  performance 
must  be  proved  on  the  trial. 

Sec.  6. — Whenever  a  cause  of  ac- 
tion or  defense  is  based  upon  a 
written  instrument  or  document, 
the  substance  only  of  such  instru- 
ment or  document,  shall  be  set 
forth  in  the  pleading,  and  a  copy 
thereof  shall  be  attached  to  the 
pleading  as  an  exhibit,  which  shall 
be  deemed  to  be  a  part  of  the 
pleading,  or  said  copy  may  with 
like  effect  be  set  forth  in  the  plead- 
ing, provided  that  such  copy  need 
not  be  attached  or  set  forth  when 
the  written  instrument  or  docu- 
ment is  one  the  form  of  which  is 
prescribed  by  statute.  Profert  shall 
not  be  required.  Michigan  Circuit 
Court  Rule  No.  21. 

10.  Compiled  Laws  1915,  Sectioi. 
12053. 

11.  Public  Acts  1915,  Chapter  14, 
Sec.  14. 


168  THE  LAW  OF  LAND  CONTRACTS  [§  80 

In  civil  actions  the  term  "Complainant"  has  been  abolished 
and  the  term  "Plaintiff"  is  now  the  correct  designation  of  the 
moving  party  in  an  equity  action.13 

The  term  "Register  in  Chancery"  has  also  been  abolished 
and  the  county  clerk  discharges  the  function  of  the  register 
of  chancery,  and  his  correct  appellation  is  clerk  of  the  Circuit 
Court.13 

It  is  no  longer  necessary  to  pray  for  summons  in  the  bill 
of  complaint,  as  the  plaintiff  is  entitled  to  process  by  rule  of 
the  court  upon  filing  the  bill  of  complaint.14  Neither  is  it 
necessary  to  incorporate  in  the  bill  of  complaint  an  averment 
that  the  answer  under  oath  of  the  defendant  is  waived,  as 
such  a  requirement  is  automatically  waived  by  failure  to 
incorporate  such  a  request  in  the  bill  of  complaint.15 

§  81.  Bill  of  Complaint — Statutory  Provisions. — Whenever 
defendants  are  named  in  any  suit  or  proceeding  as  the  un- 
known heirs,  devisees,  legatees,  and  assigns  of  any  person,  or 
are  included  in  any  class  of  unnamed  persons,  the  bill  of 
complaint  or  petition  shall  be  sworn  to  by  the  moving  party, 
his  agent  or  attorney,  and  shall  state  that  the  affiant  does 
not  know  and  has  been  unable  after  diligent  search  and  inquiry 
to  ascertain  the  names  of  the  persons  who  are  included  as 
defendants  therein  without  being  named.  Upon  the  filing  of 
same  an  order  shall  be  entered  by  the  circuit  judge  of  the 
county  in  which  such  proceedings  are  pending  or  by  a  circuit 
court  commissioner  of  such  county,  for  the  appearance  of 
every  defendant  in  such  suit  or  proceeding  who  cannot,  by 
reason  of  being  unnamed  or  otherwise,  be  personally  served 
with  process  within  three  months  from  its  date.  If  the  suit 
is  concerning  lands  every  publication  of  such  order  shall  be 
followed  by  a  description  of  such  lands  as  described  in  the  bill 
of  complaint,  and  a  statement  that  the  suit  involves  the  title 
to  such  lands  or  is  brought  to  quiet  the  title  thereto.16 

12.  Compiled  Laws  1915,  Section  15.  World  Mfg.  Co.  v.  Kent  Cir- 
12352.                                                               cuit   Judge,    115    Mich.    652.     Chan- 

13.  Compiled  Laws  1915,  Section      cery  Rule  No-  25- 

12148.  16.  Compiled  Laws  1915,  Section 

14.  Michigan   Circuit  Court  Rule      12375. 
No.  24. 


§82] 


REMEDYING   DEFECTS  IN  THE  TITLE 


169 


§  82.  Quieting  the  Title— Outstanding  Tax  Titles.— A  fruit- 
ful source  of  defects  in  real  estate  titles  are  outstanding  tax 
deeds  and  certificates.  Unless  there  has  been  irregularities  in 
the  tax  sale  or  in  levying  the  tax  relied  upon  by  the  plaintiff 
the  owner  of  the  land  as  a  condition  precedent  to  a  decree  quiet- 
ing his  title  will  be  required  to  reimburse  the  holder  of  the  tax 
deed  for  the  amount  of  the  tax  together  with  interest  from  the 
date  of  such  deed  "under  the  maxim  that  he  who  seeks  equity 
must  do  equity."17  And  if  the  invalidity  of  the  sale  is  relied 
upon,  the  burden  is  on  the  plaintiff  to  allege  and  prove  wherein 
the  invalidity  of  the  tax  proceedings  lies.18 


17.  Legg  v.  Brower,  212  Mich.  403. 
In  Connecticut  Mut.  Life  Ins.  Co. 
v.  Wood,  115   Mich.   454,  the  court 
said: 

"If,  as  in  the  present  case,  the 
taxpayer  petitions  the  court  in  chan- 
cery in  the  auditor-general's  pro- 
ceedings to  foreclose  a  lien,  the 
court  will  compel  him  to  do  equity. 
If  the  taxpayer  is  in  possession,  and 
files  a  bill  to  remove  a  cloud  from 
the  title,  the  court  may  then  com 
pel  him  to  do  equity." 

In  Axtec   Copper  Co.   v.   Auditor 
General,  128  Mich.  p.  620: 

"The  petitioner  did  not  offer  in 
its  petition,  nor  during  the  progress 
of  the  trial  in  the  court  below,  to 
reimburse  the  respondents  for  the 
amount  paid  by  them  to  the  state 
at  the  time  of  their  purchase,  and 
the  decrees  rendered  by  the  court 
below  did  not  require  this  to  be 
done.  In  Connecticut  Mut.  Life  Ins. 
Co.  v.  Wood,  115  Mich,  at  p.  454, 
it  is  said,  in  a  like  case  to  this: 
'If,  as  in  the  present  case,  the  tax- 
payer petitions  the  court  in  chan- 
cery in  the  auditor-general's  pro- 
ceedings, the  court  will  compel  him 
to  do  equity.'  See  also,  Jenkinson 
v.  Auditor-General,  104  Mich.  34: 
McGinley  v.  Mining  Co.,  121  Mich. 


88.  In  his  supplemental  brief  in 
this  court,  counsel  offers  to  pay 
the  respondents  the  amount  paid 
by  them  at  the  time  of  their  pur- 
chase, with  interest,  if  the  court 
deem  it  equitable  and  right.  We 
think  the  petitioner  ought  to  be  re- 
quired to  do  this  before  the  de- 
crees are  vacated  and  when  it  is 
done,  that  the  decrees  should  be 
vacated." 

To  the  same  effect  is  Horton  v. 
Sailing,   155   Mich.   506. 

In  Morrison  v.  Semer,  164  Mich. 
211,  the  court  said: 

"There  having  been  no  evidence 
offered,  however,  in  support  of  the 
charge  of  the  bill  of  complaint 
showing  the  invalidity  of  the  taxes 
for  those  yeras,  the  court  held  that 
in  accordance  with  the  maxim  that 
he  who  seeks  equity  must  do  equity, 
and  this  being  a  bill  of  complaint 
to  quiet  title,  the  complainants 
should  be  required  to  repay  these 
taxes  as  a  condition  of  relief,  cit- 
ing Croskery  v.  Busch,  116  Mich. 
289." 

In  Vandervelde  v.  Wilson,  176 
Mich.  191,  "He  who  asks  equity 
must  do  equity." 

18.  Morrison  v.  Semer,  164  Mich 
208. 


170  THE  LAW  OF  LAND  CONTRACTS  [§  82 

Where  the  purchaser  of  a  tax  title  went  into  possession  with- 
out serving  the  statutory  notices  to  redeem,  he  was  not  entitled 
to  compensation  for  improvements  made  or  taxes  paid  while  he 
was  in  wrongful  possession.19 

Where  payments  are  made  upon  tax  titles  which  are  void, 
they  will  be  deemed  voluntary  and  recovery  will  not  be  per- 
mitted in  a  direct  action  brought  for  that  purpose,20  but  on  a 
bill  to  quiet  title  payment  of  the  tax  and  interest  will  be  re- 
quired of  the  plaintiff  as  a  condition  precedent  to  granting 
relief. 

In  a  case  where  the  auditor  general  of  the  state  has  refused 
to  issue  a  deed  where  the  plaintiff  had  tendered  to  him  the 
correct  amount  of  unpaid  tax  necessary  to  redeem  the  property, 
he  is  a  proper  party  in  an  action  to  quiet  the  title,  and  this  is 
true  even  where  the  auditor  general  has  sold  the  property,  but 
through  irregularities  in  the  sale,  the  same  is  void.21 

One  claiming  to  be  the  absolute  owner  of  lands  under  a  tax 
title  cannot  lay  the  foundation  for  a  suit  to  quiet  title  against 
the  former  owner  by  alleging  a  demand  upon  and  a  refusal  to 
disclaim  any  interest  in  the  property  by  such  former  owner.22 

§  83.  Statutory  Provisions — Parties  Unknown  Defendants. 

— In  all  suits  and  proceedings  in  chancery,  if  there  be  any  per- 
son interested  in  the  same  or  in  the  subject  matter  involved 
therein,  or  whose  name  appears  in  the  records  of  any  public 
office  as  having  at  any  time  claimed  any  right,  title,  interest  or 
estate  in  the  subject  matter  of  the  suit  or  any  portion  thereof 
or  any  lien  or  charge  thereon  without  having  conveyed  or  re- 
leased the  same,  or  who  might  at  any  time  under  the  provisions 
or  legal  effect  of  any  instrument  of  record  claim  or  be  entitled 
to  claim  any  benefits  thereunder,  and  it  is  not  known  whether 
such  person  is  living  or  dead,  or  where  he  may  reside  if  living, 
or  whether  the  title,  interest,  claim,  lien  or  possible  right  has 


19.  Morrison    v.    Semer,    supra 
Corrigan  v.  Hinkley,  125  Mich.  125 
Taylor   v.    Roniger,    147    Mich.    99 
Cook   Land    Co.    v.    McDonald,    155 
Mich.    175. 


Corrigan   v.   Hinkley,   supra;    Bate- 
son  v.  City  of  Detroit,  143  Mich.  582 

21.  Horton     v.     Helmholtz,     149 
Mich.  231. 


20.  Morrison    v.     Semer,    supra;  22'  Wangle  Land  Co.  v.  Nessen, 

Croskery  v.    Bush,    116   Mich.   288;       155  Mlch>  463" 


§84]  REMEDYING   DEFECTS   IN  THE  TITLE  171 

been  by  him  assigned  to  any  person  or  persons,  or  if  dead 
whether  he  has  personal  representatives  or  heirs  living  or 
where  they  or  some  of  them  may  reside,  or  whether  such  title, 
interest,  claim,  lien  or  possible  right  has  been  disposed  of  by 
will,  it  shall  be  lawful  to  make  such  person  and  every  one  claim- 
ing under  him  defendants  in  such  suit  or  proceeding  by  nam- 
ing such  person  and  adding  the  words  "or  his  unknown  heirs, 
devisees,  legatees,  and  assigns,"  which  shall  include  and  be 
construed  to  include  all  persons  claiming  in  any  manner  under 
the  person  named  as  originally  interested  in  such  subject  mat- 
ter. If  the  subject  matter  be  real  estate,  such  addition  shall 
include  and  be  construed  to  include  all  persons  who  might  claim 
under  the  person  named  any  dower  or  homestead  right, 
whether  the  same  shall  be  vested  or  inchoate  at  the  time  of 
beginning  suit,  or  proceeding.  In  all  suits  and  proceedings  in 
chancery,  if  there  be  persons  interested  in  the  same,  as  heirs 
of  some  person  or  persons  deceased,  whose  names  are  unknown, 
it  shall  be  lawful  to  make  such  unknown  heirs  parties  defend- 
ant to  such  suit  or  proceeding  by  the  name  and  description  of 
unknown  heirs  of  such  deceased  person.23 

§  84.  Substituted  Service — Unknown  Defendants  Appoint- 
ing Guardian  Ad  Litem. — All  subsequent  proceedings  including 
publication  of  said  order  shall  be  taken  in  the  same  manner 
and  with  like  effect  as  though  all  defendants  were  named  there- 
in by  their  proper  names,  and  as  to  unnamed  defendants  and 
such  as  are  not  known  to  be  living  shall  be  in  conformity  with 
the  statutes  relating  to  defendants  who  reside  in  another  state, 
provided  that  a  guardian  or  guardians  ad  litem  shall  be  ap- 
pointed in  accordance  with  the  rules  and  practice  of  the  court 
in  the  case  of  incompetent  persons,  to  represent  all  unknown 
or  unascertained  defendants,  and  all  known  defendants  who 
are  infants  or  incompetent,  provided  further  that  the  court 
before  which  said  cause  is  heard,  on  a  proper  showing  by  affi- 
davit that  one  or  more  of  the  defendants  did  not  have  actual 
notice  of  said  suit  in  time  to  appear  and  defend  the  same,  may 
in  its  discretion,  at  any  time,  not  later  than  three  years  after 

23.  Compiled  Laws  1915,  Section 
12371. 


272  THE  LAW  OF  LAND  CONTRACTS  [§  84 

the  entry  of  the  final  decree,  reopen  said  case  and  order  a 
re-hearing  as  to  the  rights  of  such  defendants  or  defendants 
who  shall  serve  a  copy  of  such  affidavit  and  order  and  notice 
of  all  subsequent  proceedings  in  the  case  on  the  plaintiff  or  his 
attorney  and  on  all  defendants  who  appeared  on  the  original 
hearing  or  their  attorneys.24 

§  85.  Parties  Not  to  Be  Joined  as  Unknown  Defendants  Un- 
less Fifteen  Years  Have  Elapsed. — Whenever  suit  is  brought 
under  the  provisions  of  sections  twenty  to  twenty-seven,  in- 
clusive, of  this  chapter  to  quiet  the  title  to  real  estate,  no  one 
whose  actual  or  possible  title,  claim,  or  lien,  is  sought  to  be 
removed  or  construed,  and  whose  name  appears  of  record  in 
some  public  office  in  connection  therewith,  may  be  made  de- 
fendant in  accordance  with  the  preceding  sections,  except  under 
his  proper  name  or  the  name  appearing  in  such  record,  nor 
shall  his  unknown  heirs,  devisees,  legatees  and  assigns  be  in- 
cluded as  defendants  therein,  unless  fifteen  years  have  elapsed 
since  the  recording  of  such  title,  claim  or  lien.  When  any  one 
against  whom  proceedings  under  sections  twenty  to  twenty- 
seven,  inclusive,  of  this  chapter  might  otherwise  be  brought  is 
known  to  be  dead,  and  some  of  the  persons  who  might  claim 
under  him  and  their  places  of  residence  are  known,  such  of 
them  as  are  known  shall  be  named  as  defendants  and  brought 
before  the  court  in  the  manner  provided  by  law,  and  all  others 
who  might  claim  under  such  deceased  person  may  be  included 
as  unknown  defendants.25 

§  86.  The  Action  to  Quiet  Title — Miscellaneous  Michigan 
Decisions. — Where  a  vendee,  after  the  forfeiture  of  a  land  con- 
tract, encumbers  the  record  with  a  quit-claim  deed  to  third 
parties,  a  suit  to  quiet  the  title  will  lie.26  Also  quieting  the 
title  is  the  appropriate  remedy  to  legally  establish  an  ease- 
ment consisting  of  the  right  to  overflow  a  certain  land  for  the 
purposes  of  a  mill  race.27  Where  the  plaintiff  seeks  equitable 
relief,  the  court  having  acquired  jurisdiction,  has  the  right  to 

24.  Compiled  Laws  1915,  Section  26.  Security    Investment    Co.    v. 
12376.                                                               Meister,  214   Mich.  337. 

25.  Compiled  Laws  1915,  Section  27.  Moore   v.   Prevost,   205   Mich. 
12373.                                                                  687. 


§  gg]  REMEDYING   DEFECTS  IN  THE  TITLE  173 

enter  a  decree  for  the  defendant  quieting  his  title  to  the 
property  upon  his  cross  bill.28  The  bill  of  complaint  to  quiet 
title  may,  at  the  same  time,  seek  equitable  injunctive  relief 
to  restrain  actions  at  law,  such  as  ejectment,  pending  the  de- 
termination of  the  suit.29  Where  the  bill  of  complaint  to  quiet 
title  to  lands,  alleged  adverse  possession  without  also  alleging 
that  such  possession  was  exclusive,  it  was  held  that  the  bill 
was  sufficient.80 

A  bill  to  quiet  title  was  sufficient  for  relief  where  it  alleged 
the  execution  of  certain  deeds  conveying  premises  to  plaintiff 
upon  conditions  that  he  pay  certain  sum  of  money  to  each  de- 
fendant and  that  defendants  had  refused  to  accept  the  money, 
and  that  they  asserted  the  mental  incompetency  of  the  grantor, 
and  threatened  to  litigate  with  the  plaintiff.81 

In  a  suit  to  quiet  title,  a  decree  of  the  circuit  court  establish- 
ing the  validity  of  a  certain  tax,  a  deed  based  thereon  could 
not  be  attacked  collaterally,  because  of  a  change  in  the  descrip- 
tion, of  the  premises  authorized  by  a  certain  statute.32 

A  grantee,  agreeing  to  care  for  the  mother  of  the  grantor 
in  a  deed,  was  not  entitled  until  he  had  completed  his  contract, 
to  assert  his  rights  by  the  commencement  of  a  suit  to  quiet  his 
title  against  creditors  that  had  levied  execution  on  the  legal 
title  of  the  debtor.33 

Where  plaintiff,  who  had  been  ousted  by  defendant,  brought 
suit  to  quiet  title,  it  was  held  that  he  should  have  been  required 
to  pursue  his  remedy  at  law,  as  possession  is  a  necessary  ele- 
ment in  such  a  suit.34 

A  defendant  cannot,  in  his  cross  bill,  question  the  validity 
of  the  deed  to  plaintiff  on  the  ground  that  plaintiff  had  secured 
the  deed  by  fraud,  as  the  right  to  complain  of  any  fraud  is 
nonassignable.35 

28.  Farr  v.  Childs,   204   Mich.   20.  32.  Heethuis   v.    Kerr,    194    Mich. 


29.  Grand    Trunk    v.    Fuller,    2D5 


689. 


Mich.  486.  33-  Schmidt     v.     Steinbach,     193 

Mich.  640. 


30.  Corby  v.  Thompson,  196  Mich. 
706. 


695. 


34.  Longcar  v.  Turner,  191  Mich. 

240. 
31.  Guntzviller  v.  Gitre,  195  Mich.  3g_  Cochran  Timber  Cq>  y_  Flsher> 


190  Mich.  478. 


174  THE  LAW  0F  LAND  CONTRACTS  [§  86 

The  burden  of  proof  is  on  the  plaintiff  to  show  a  valid  title, 
and  service  of  a  proper  notice,  and  where  notice  was  served  on 
the  heirs  of  a  deceased,  as  to  one  the  day  after  filing  of  the 
bill,  and  as  to  the  other  only  a  few  days  before  commencement 
of  suit,  so  that  the  return  of  service  was  not  filed  until  after 
suit  was  begun,  was  not  sufficient  to  confer  jurisdiction  to 
quiet  title.86 

Courts  of  equity  may  pass  upon  or  locate  boundary  lines  as 
an  incident  of  issues  properly  within  chancery  jurisdiction,  but 
they  have  no  inherent  and  independent  jurisdiction  to  deter- 
mine the  true  location  of  disputed  boundaries  raised  in  a  suit 
to  quiet  title.37 

A  court  of  equity  has  jurisdiction  to  enjoin  repeated  tres- 
passes upon  lands,  yet  it  is  not  authorized  to  try  defendant's 
right  to  possession  of  real  property  of  which  he  claims  actual 
possession  and  title,  evidenced  by  acts  of  control  and  occupancy, 
and  the  title  to  the  land  should  be  determined  at  law.38 

Defendants  in  a  suit  to  quiet  title  were  in  not  position  to 
object  to  the  jurisdiction  of  the  court  of  chancery  when  they 
had  filed  a  cross  bill  asking  for  affirmative  relief  and  the  annul- 
ment of  a  deed  to  plaintiff  as  fraudulent.89 

As  against  parties  in  possession  of  real  property  under  a 
claim  of  title,  a  bill  to  quiet  title  will  not  lie ;  the  remedy  is  at 
law.40 

A  bill  was  filed  to  quiet  title  to  a  strip  of  land  which  defend- 
ant claimed  title  to  by  adverse  possession,  relying  on  an  old 
fence  which  had  fallen  into  decay,  the  fence  not  having  been 
continuously  maintained  on  a  large  part  of  the  strip  of  land  in 
dispute,  it  was  held  that  defendant  did  not  acquire  title  by 
adverse  possession.41 

Where  a  bill  to  quiet  title  was  filed,  to  remove  a  cloud  con- 
sisting of  a  tax  deed,  alleging  that  defendant  did  not  serve  the 
required  statutory  notice  to  redeem  on  the  proper  parties,  it 
was  dismissed  as  the  parties  had  a  remedy  at  law.42 

36.  Bretz  v.  Hitchcock,  188  Mich.  40.  Lachelt  v.  Mclnerney,  185 
492.  Mich.  413. 

37.  Weissert  v.  Fuller,  188  Mich.  41.  Conner  v.  Detroit  Terminal 
327.  r.  r.  Co.,  183  Mich.  241. 

38.  Beach  v.  Rice,  186   Mich.  95.  42    Holmeg    y     goule     18Q    Mlch 

39.  Hummill  v.  Smale,  186  Mich. 


199. 


527. 


R  86]  REMEDYING  DEFECTS  IN  THE  TITLE  175 

Although  plaintiffs  in  their  bill  to  quiet  title  to  land  prayed 
to  have  a  conveyance  cancelled  as  a  cloud  on  their  title,  on  the 
ground  of  fraud  and  duress,  and  of  mental  incompetency  on  the 
part  of  the  grantor  deceased,  it  was  held  that  the  case  pre- 
sented one  for  equitable  cognizance.43 

A  bill  in  equity  to  quiet  title,  which  does  not  aver  that  plain- 
tiffs are  in  possession  or  the  defendants  are  not  in  possession, 
is  demurrable,  for  if  the  defendants  are  in  possession,  they  are 
entitled  to  a  jury  trial.44 

Where  defendants  filed  a  petition  following  a  decree  based 
on  substituted  service,  presenting  at  the  same  time  their 
answer  to  the  bill  which  sought  to  quiet  title  to  land  asking 
that  the  decree  be  "set  aside,  altered  or  amended,  as  to  the 
court  may  seem  just,"  it  was  held  that  the  circuit  court  erred 
in  denying  the  petition  on  the  ground  that  it  did  not  ask  in 
direct  terms  to  have  the  default  set  aside  and  that  defendants 
did  not  present  a  sworn  answer.46 

In  a  bill  to  quiet  title  by  a  widow  which  showed  that  she  had 
executed  during  her  husband's  lifetime  her  sole  quit-claim 
deed  of  property  held  by  her  and  her  husband  as  an  estate  by 
the  entireties,  to  secure  a  loan,  the  court  held  that  the  wife 
conveyed  no  interest  in  the  premises,  nor  did  title  inure  to  the 
benefit  of  the  grantee  by  reason  of  the  husband's  death  and  the 
title  thereafter  acquired  by  the  wife.46 

On  appeal  by  plaintiffs  from  an  adverse  decree  in  a  suit  to 
quiet  title,  the  Supreme  Court  will  not  pass  on  the  constitu- 
tionality of  a  statute  and  dismiss  the  bill  at  plaintiff's  request, 
if  the  point  was  not  presented  or  passed  upon  by  the  trial 
court.47 

Where  equity  has  jurisdiction  of  a  bill  to  quiet  title  to  lands 
purchased  by  plaintiff  at  a  judicial  sale  that  was  void  and  de- 
fendants offered  to  pay  to  plaintiff  the  consideration  paid  by 
him,  equity  will  retain  jurisdiction  and  remove  the  cloud  in 

43.  Lecus  v.  Turns.  180  Mich.  46.  Ernest  v.  Ernest,  178  Mich. 
117.  100. 

44.  Berger  v.  Roe.  179  Mich.  184.  47.  Walker  v.  Schultz,  175  Mich. 

45.  McDowell  v.   Mecosta  Circuit  2S0. 
Judge,    178    Mich.    103. 


176  THB  LAW  OF  LAND  CONTRACTS  [§  86 

defendant's  title,  setting  aside  the  purchaser's  deed  and  de- 
creeing a  lien  on  the  property  for  the  amount  paid.48 

Where  plaintiff  notified  defendant  of  her  election  to  termina- 
tion of  the  contracts  for  default,  plaintiff  was  entitled  to  main- 
tain a  suit  to  quiet  title,  although  she  had  subsequently  con- 
tracted to  convey  to  other  purchasers  and  defendant,  after 
notice  of  forfeiture,  tendered  a  check  for  the  purchase  price 
which  she  refused.49 

A  bill  to  quiet  title  to  land  held  by  plaintiffs  intestate  under 
a  land  contract,  which  he  averred  had  been  fully  paid  up,  the 
defendants  claiming  no  interest  therein,  also  charging  adverse 
possession  for  upwards  of  twenty-five  years  could  not  be 
sustained  on  demurrer,  as  a  suit  to  quiet  title;  averment  of 
some  claim  or  hostile  interest  being  essential.50 

In  a  suit  to  quiet  title  by  the  owner  of  land  as  against  a  pur- 
chaser for  taxes,  the  plaintiff  will  be  required  to  do  equity  by 
refunding,  as  a  condition  to  relief,  the  validly  assessed  taxes 
for  years  which  defendant  has  purchased.61 

One  must  have  either  a  legal  or  an  equitable  title  if  he  is  to 
be  allowed  relief  upon  a  bill  to  quiet  title,  though  an  equitable 
title  is  sufficient.52 

Although  not  in  possession  a  bill  to  quiet  title  may  be  filed 
by  an  heir  to  set  aside  a  deed  in  trust  which  is  void  as  pro- 
hibited by  the  statute  against  perpetuities.63 

A  bill  to  quiet  title  will  not  lie  to  remove  a  cloud  caused  by 
an  irregular  levying  of  an  execution  on  land,  the  remedy  being 
an  application  to  the  court  wherein  the  judgment  was 
rendered.54 

A  bill  will  lie  to  remove  a  levy  upon  a  homestead,65  and  such 
a  bill  may  be  maintained  by  the  wife  of  the  debtor,66  the  wife 

48.  Hunt  v.  Stevens,  174  Mich.  53.  Casgrain  v.  Hammond,  134 
501.                                                                   Mich.  419. 

49.  Donnelly  v.  Lyons,  173  Mich.  54>  Rhode  v.  Hassler,  113  Mich. 
515-  56. 

50.  Rodgers  v.  Beckel,  172  Mich.  ^  Hitchcock  v.  Misner,  111 
544-  Mich.  80. 


51.  Morrison  v.  Semer,  164  Mich 

132  Mich.  93. 


56.  Burkhardt  v.  Walker  &  Son, 


52.  Harton     v.     Helmholtz,      149 
Mich.  227. 


§  87]  REMEDYING   DEFECTS   IN  THE  TITLE  177 

having  the  same  right  to  protect  the  homestead  as  the 
husband.57 

§  87.  Bill  of  Complaint  to  Quiet  Title  Because  of  Outstand- 
ing Tax  Titles,  Misdescription  of  the  Premises,  Failure  to 
State  the  Marital  Status  of  Certain  Grantors,  Containing  Aver- 
ments Necessary  in  the  Case  of  Unknown  Heirs,  Legatees  and 
Devisees. 

(Caption,  Address  and  Introduction.) 

The  plaintiff  herein  (here  insert  the  name  of  plaintiff),  com- 
plains of  the  defendants  herein  (here  insert  the  name  of  de- 
fendants), and  for  a  cause  of  action  alleges: 

1.  That  this  plaintiff  does  not  know,  and  has  been  unable, 
after  diligent  search  and  inquiry,  to  ascertain  the  names  of  the 
following  persons  who  are  included  and  designated  as  de- 
fendants herein,  to-wit:  (here  state  unknown  heirs,  devisees, 
legatees,  and  assigns  of  each  of  the  following  named  persons) : 
(here  name  all  of  the  persons  whose  unknown  heirs,  devisees, 
legatees  and  assigns  are  made  parties  to  the  action). 

2.  That  this  plaintiff  is  the  owner,  in  his  own  right  and  in 
fee  simple,  of  all  that  certain  piece  or  parcel  of  land,  more 
particularly  described  as  follows:  (here  describe  real  estate), 
and  that  the  same  is  of  the  value  of  $ and  upwards. 

3.  That  on  the day  of ,  A.  D.  19 , 

the  above  described  real  estate  was  sold  and  deeded  by  the 
Auditor  General  of  the  State  of  Michigan,  for  the  state  and 
county  taxes  for  the  year ,  to ,  which  out- 
standing deed  appears  regular  on  its  face  and  constitutes  a 
cloud  on  this  plaintiff's  title. 

4.  That  plaintiff  stands  ready  and  willing  to  pay,  and  hereby 
tenders  the  amount  of  such  taxes  together  with  the  amount  of 
interest  which  may  have  accrued  thereon  at  the  legal  rate,  and 
stands  ready  and  willing  to  pay  such  other  costs,  charges,  and 
disbursements  to  the  vendee  of  said  tax  deed,  as  may  seem  to 
the  court  just  and  equitable  in  the  premises. 

5.  It  appears  from  the  records  on  file  in  the  office  of  the 
register  of  deeds  of county,  that  on  the 

57.  Armitage  v.  Toll,  64  Mich.  412. 


£ 


178  THE  LAW  0F  LAND  CONTRACTS  [§  87 

day  of ,  one  John  Doe  conveyed  said  real  estate  to 

Richard  Roe ;  that  such  deed  does  not  recite  the  marital  status 
of  the  grantor,  and  by  reason  of  the  fact  that  there  is  no  evi- 
dence of  record  as  to  the  said  John  Doe's  marital  status, 
prospective  purchasers  of  said  real  estate  fear  that  some  dower 
interest  in  the  wife  of  the  said  John  Doe,  if  he  had  one,  may 
be  outstanding;  that  at  the  time  the  said  John  Doe  executed 
said  conveyance  he  was  in  fact  an  unmarried  man;  that  said 
defect  constitutes  a  cloud  on  plaintiff's  title,  and  tends  to  em- 
barrass plaintiff  in  the  sale  of  said  property. 

6.  That  on  the day  of ,  one 

and  his  wife ,  executed  and  delivered  a  deed  for  said 

property  to  this  plaintiff,  through  which  grantors  this  plaintiff 
claims  title,  in  which  deed  said  property  was  erroneously  de- 
scribed as  follows :  (here  insert  erroneous  description) .  That 
such  erroneous  description  of  such  property  constitutes  a 
cloud  on  plaintiff's  title  and  tends  to  embarrass  the  sale 
thereof. 

Wherefore  Plaintiff  Prays: 

(a)  That  he  may  be  permitted  to  redeem  from  said  tax 
sale.  That  upon  the  payment  of  said  tax  together  with  the 
legal  rate  of  interest  and  all  just  expenses  paid  out  and  dis- 
bursed by  the  said  plaintiff ,  that  the  defendants  be 

required  to  execute  to  this  plaintiff  a  quit  claim  deed,  convey- 
ing all  his  right,  title,  and  interest  in  and  to  the  above  de- 
scribed premises.  That  upon  failure  of  said  defendants  to 
execute  a  quit  claim  deed  as  aforesaid,  this  plaintiff  shall  have 
permission  to  record  this  decree.  That  the  same  shall  stand 
as  a  full,  complete,  and  adequate  conveyance  of  the  said  de- 
fendants' claims  in  and  to  said  property. 

(b)  That  the  court  finds  the  fact  to  be  and  will  enter  a  decree 
accordingly  that  John  Doe,  the  defendant  above  named,  was 
an  unmarried  man  at  the  time  said  conveyance  was  executed 
and  that  the  unknown  heirs,  devisees,  legatees,  and  assigns  of 
John  Doe  have  no  right,  title,  and  interest  in  and  to  said  real 
estate,  and  that  plaintiff's  title  thereto  is  quieted  to  said  real 
estate  as  against  all  said  defendants  and  that  the  decree  en- 
tered in  this  cause  shall  stand  as  an  absolute  conveyance  of 


§  88]  REMEDYING   DEFECTS  IN  THE  TITLE  179 

each  and  all  the  respective  defendants'  interest  in  and  to  said 
property  to  this  plaintiff. 

(c)  That  plaintiff  shall  have  such  other,  further,  and  dif- 
ferent relief  in  the  premises  as  shall  be  agreeable  to  equity  and 
good  conscience.  


Attorney  for  Plaintiff. 

§  88.  Decree  Quieting  Title  Because  of  Outstanding  Tax 
Titles,  Misdescriptions  of  the  Premises,  Failure  to  State  the 
Marital  Status  of  Certain  Grantors. 

(Caption.  Usual  recital  of  time  and  place  of  court.) 
This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint taken  as  confessed  in  said  cause,  and  the  court  having 
heard  the  evidence  for  the  plaintiff,  and  having  duly  considered 
the  same,  and  being  fully  advised  of  the  premises  finds  the  facts 
to  be  as  follows : 

1.  That  the  defendant  A.  B.  is  an  owner  and  holder  of  a 
certain  tax  deed  upon  which  he  has  paid  the  taxes  in  the  sum 

of dollars,  plus  the  sum  of dollars  costs 

and  expenses  in  connection  with  procuring  said  tax  title  and 

that  there  is  due  accrued  interest  thereon  for years, 

making  the  total  of dollars  due  the  said  A.  B.  upon 

said  tax  title. 

2.  That  it  is  just  and  equitable  that  the  plaintiff  be  per- 
mitted to  redeem  said  outstanding  tax  title  from  the  said  A.  B. 

upon  the  payment  of  said  sum  of dollars  to  the  clerk 

of  this  court,  and  it  further  appears  that  plaintiff  has  deposited 
with  the  clerk  of  this  court  for  the  purpose  of  redeeming  from 

said  tax  sale  said  sum  of dollars,  the  court  further 

finds: 

3.  That  C.  D.,  the  above  mentioned  defendant,  at  the  time 
he  made  a  conveyance  of  said  property  as  hereinbefore  de- 
scribed was  an  unmarried  man  and  that  no  surviving  spouse 
or  widow  of  the  said  C.  D.  has  any  right,  title,  interest  in  and 
to  said  real  estate. 

4.  The  court   further  finds   that   on   the day   of 

,  when  the  above  named  defendants and 

executed  a  deed  to  said  premises,  that  by  such  deed 

said  defendants  intended  to  convey  to  the  plaintiff  the  identical 


IgO  THE  LAW  OF  LAND  CONTRACTS  [§  88 

property  described  in  plaintiff's  bill  of  complaint,  to-wit:  (here 
insert  the  description  of  property),  but  that  said  property 
was  erroneously  described  in  the  following  manner:  (here  in- 
sert the  erroneous  description) ;  that  upon  the  execution  and 
delivery  of  said  deed  the  said  plaintiff  took  possession  of  the 
property,  has  held  the  same  exclusively,  openly,  notoriously, 
and  adversely  as  against  all  of  said  defendants  for  a  period  of 
fifteen  years  and  more,  and  that  said  plaintiff  is  now  the  owner 
in  fee  simple  of  said  property  and  has  a  perfect  title  against 
all  defendants;  that  the  claims  of  said  defendants  constitute 
clouds  upon  plaintiff's  title  and  that  plaintiff's  title  ought  to 
be  quieted  against  all  of  said  defendants. 

It  Is  Therefore  Considered,  Adjudged  and  Decreed  and  the 
court  doth  hereby  order,  adjudge  and  decree  that  said  tax  deed 
issued  by  the  Auditor  General  of  the  State  of  Michigan  to 

A.  B.  dated  the day  of ,  recorded  in  liber 

,   page of in   the   office   of   the 

register  of  deeds  of county  is  hereby  cancelled,  an- 
nulled and  set  aside  and  the  said  defendant  A.  B.  is  hereby 
decreed  to  have  no  right,  title,  and  interest  in  and  to  the 
above  described  real  estate  by  virtue  of  said  deed,  and  the  title 

of  said  plaintiff is  hereby  decreed  to  be  perfect  as 

against  the  said  defendant. 

It  Is  Further  Ordered,  Adjudged  and  Decreed  that  no  sur- 
viving spouse  or  widow  of  the  said  A.  B.  had  any  right,  title, 
or  interest  in  and  to  the  said  real  estate;  that  the  title  of 
plaintiff  is  perfect  as  against  the  unknown  heirs,  devisees, 
legatees,  and  assigns  of  the  said  A.  B. 

It  Is  Further  Ordered,  Adjudged  and  Decreed  that  said  de- 
fendants (here  name  the  defendants  who  had  the  legal  title 
to  the  real  estate  at  the  time  the  deed  was  made  containing 
the  erroneous  description  of  the  real  estate  to  the  plaintiff)  ; 
that  the  above  named  defendants  had  no  right,  title,  or  interest 
in  and  to  said  real  estate  and  that  the  plaintiff  has  a  title  in 
fee  simple,  perfect  as  against  said  defendants;  and  that  the 
plaintiff  have  leave  to  cause  this  decree  or  a  certified  copy 
thereof  to  be  recorded  in  the  office  of  the  register  of  deeds  of 
said  county  of 

Circuit  Judge. 


§90] 


REMEDYING   DEFECTS  IN  THE  TITLE  181 


§  89.  Decree  to  Quiet  Title — Cancel  Land  Contract. 

(Caption.     Recital  of  time  and  place  of  court.) 

This  cause  having  come  on  to  be  heard  on  the  pleadings 
therein  and  the  proofs  taken  in  said  cause  and  having  been 
argued  by  counsel  for  respective  parties  and  the  court  having 
duly  considered  same,  being  fully  advised  in  the  premises, 
finds: 

1.  That  the  land  contract  referred  to  and  described  in  plain- 
tiff's bill  of  complaint,  being  recorded  in  liber ,  page 

in  the  office  of  the  register  of  deeds  of 

county,  constitutes  a  cloud  upon  the  plaintiff's  title,  that  the 
same  has  been  duly  forfeited  and  that  the  plaintiff  has  re- 
possessed himself  of  the  premises  described  in  said  bill  of 
complaint  and  that  the  vendees  in  said  land  contract  no  longer 
have  any  right  title  or  interest  in  and  to  said  premises. 

It  is  therefore  ordered,  adjudged  and  decreed  and  the  court 
doth  hereby  order,  adjudge  and  decree  that  the  land  contract 

executed  on  the day  of by  the  plaintiff  as 

vendor  and defendants  as  vendees,  recorded  in  liber 

,  page of in  the  office  of  the 

register  of  deeds  of county  is  null,  void  and  of  no 

effect,  that  said  defendants have  no  right,  title  and 

interest  in  and  to  said  real  estate  and  that  the  plaintiff's  title 
is  hereby  quieted  against  said  defendant's  and  that  the  plain- 
tiff is  the  owner  of  said  land  and  premises  in  fee  simple  by 
title  perfect  as  against  the  defendants  in  this  suit  and  that  the 
plaintiff  have  leave  to  cause  this  decree  or  a  certified  copy 
thereof  to  be  recorded  in  the  office  of  the  register  of  deeds  for 
the  said  county  of 


Circuit  Judge. 

§  90.  Effect  of  Decree. — On  the  hearing  of  any  such  suit  or 
proceeding,  if  the  allegations  of  the  bill  or  petition  are  proven 
to  the  satisfaction  of  the  court,  and  if  it  shall  appear  that  the 
claims  or  possible  rights  of  the  defendants  on  the  subject  mat- 
ter of  the  suit  are  of  no  validity  and  ought  to  be  barred,  the 
court  shall  decree  accordingly ;  or  if  there  are  valid  liens  exist- 
ing, or  possible,  uncertain  or  doubtful  conditions  to  be  con- 


lg2  THE  LAW  OF  LAND  CONTRACTS  [§  90 

strued,  it  shall  make  a  decree  determining  their  nature,  validity 
or  extent  which  shall  determine  the  rights  of  all  parties  plain- 
tiff or  defendant,  and  shall  be  effectual  to  exclude  all  parties 
to  such  suit  contrary  to  such  determination,  and  shall  have  the 
same  effect  as  a  release  by  the  holder  thereof  of  every  actual 
or  possible  claim  which  such  decree  shall  find  to  be  without 
validity  and  if  the  effect  of  such  decree  is  to  quiet  the  title  to 
lands,  or  if  it  in  any  way  concerns  the  title  to  real  estate,  a 
certified  copy  thereof  may  be  recorded  in  the  office  of  the 
register  of  deeds  of  any  county  where  said  lands  or  any  part 
of  the  same  are  situated.  The  court  may  award  costs  in  its 
discretion.68 

§  91.  Bill  of  Complaint  to  Cancel  Land  Contract  After  For- 
feiture. 

(Address  and  introduction.) 

1.  That  plaintiff  is  the  owner  in  his  own  right  and  fee  simple 
to  the  following  described  real  estate,  to-wit :  (here  insert  com- 
plete legal  description),  and  has  been  the  owner  of  such  real 

estate  for years  last  past  and  that  the  value  thereof 

is dollars. 

2.  That  heretofore  on  or  about  the day  of 

while  plaintiff  was  such  owner  as  aforesaid,  plaintiff  made  and 
executed  a  contract  in  writing  with  one  John  Doe  for  the  sale 
of  said  land  and  premises,  a  true  copy  of  said  contract  being  as 
follows:    (here  insert  copy  of  contract). 

3.  That  thereafter  on  the day  of the 

said  John  Doe  caused  the  said  contract  to  be  recorded  in  the 

office  of  the  register  of  deeds  of  said  county  of in  liber 

of on  page as  in  and  by  the 

record  thereof  now  remaining  in  said  register's  office  and 
whereto  reference  is  prayed. 

4.  That  thereafter  on  or  about  the day  of , 

the  said  John  Doe  having  made  default  in  the  terms  and  con- 
ditions of  said  contract  in  writing  and  having  failed  to  make 
the  payments  thereon  as  provided  therein,  this  plaintiff  in  ac- 
cordance with  the  terms  and  conditions  of  said  contract  elected 

58.  Compiled  Laws  1915,  Section 

12378. 


§92] 


REMEDYING   DEFECTS  IN  THE  TITLE  183 


to  declare  the  same  void  by  reason  of  such  default  and  there- 
after resumed  full  possession  of  said  land  and  the  whole  thereof 
and  still  is  in  possession  thereof.  That  plaintiff  thereafter 
applied  to  the  said  John  Doe  and  requested  him  to  execute  a 
release  in  writing  of  the  said  agreement  in  order  that  the  same 
might  be  cancelled,  which  request  the  said  John  Doe  refused 
and  still  refuses. 

5.  That  the  record  of  said  agreement  constitutes  a  cloud  on 
the  title  to  said  plaintiff  of  said  land  and  premises  and  tends 
to  depreciate  the  value  thereof  and  to  embarrass  this  plaintiff 
in  effecting  a  sale  thereof. 

Wherefore  plaintiff  prays  as  follows: 

(a)  That  said  contract  in  writing  may  be  decreed  to  be  null 
and  void  and  a  cloud  upon  the  title  of  this  plaintiff  to  the  said 
land. 

(b)  That  the  record  of  said  agreement  now  remaining  in  the 
office  of  the  register  of  deeds,  aforesaid,  be  decreed  to  be  dis- 
charged and  to  be  null  and  void  and  of  no  effect. 

(c)  That  plaintiff  have  leave  to  cause  such  decree  to  be  re- 
corded in  the  office  of  the  said  register  of  deeds  for  the  county 
of 

(d)  That  plaintiff  may  have  such  other  and  further  relief  in 
the  premises  as  shall  be  agreeable  to  equity  and  good  con- 
science. 


Attorney  for  Plaintiff. 

§  92.  Bill  of  Complaint  Form  to  Quiet  Title— Cloud  Created 
by  Quit-Claim  Deed  by  Vendee. — The  following  is  a  form  of  a 
bill  of  complaint  to  quiet  the  title  to  real  estate  where  the 
vendor  has  forfeited  a  land  contract  and  repossessed  himself 
of  the  premises,  the  cloud  on  the  title  consisting  of  a  quit-claim 
deed  by  the  vendor  of  the  land  contract  to  some  third  party. 

State  of  Michigan,  in  the  Circuit  Court  for  the  County  of 

,  in  Chancery;  to  the  Circuit  Court  for  the  County 

of ,  in  Chancery: 

The  plaintiff,  herein,  John  Doe,  of  the  City  of  Detroit,  county 
of ,  and  State  of  Michigan,  complains  of  the  de- 


184  THE  LAW  OF  LAND  CONTRACTS  [§  92 

fendant  herein  (here  join  as  defendants  original  vendee,  his 
vendee,  and  their  spouses),  and  respectfully  shows  unto  this 
Honorable  Court  as  follows : 

1.  That  this  plaintiff  is  the  owner  of  (here  state  either  legal 
or  equitable  title,  as  the  case  may  be)  in  and  to  the  following 
described  real  estate  to-wit:  (here  insert  complete  legal  de- 
scription of  the  real  estate),  and  further  that  neither  of  the 
above  mentioned  defendants  are  in  possession  of  said  premises 
or  any  part  thereof. 

2.  That  on  the day  of ,  A.  D.  19......  the 

said  defendants  entered  into  a  contract  with  the  plaintiff 
whereby  the  plaintiff  contracted  to  sell,  and  the  said  defend- 
ants contracted  to  buy  the  above  described  real  estate  for  a 
certain  valuable  consideration  therein  named,  a  true  copy  of 
such  contract  being  hereto  attached,  marked  Exhibit  "A,"  and 
made  a  part  thereof,  reference  to  which  is  hereby  prayed. 

3.  That  by  the  terms  and  conditions  of  said  contract  the 
said  defendants  had  agreed  to  pay  monthly  installments 
thereon  amounting  to  $ ;  that  said  contract  con- 
tained a  clause  providing  that  in  the  event  the  said  defendants 
failed,  neglected,  or  refused  to  comply  with  the  terms  of  such 
contract,  that  this  plaintiff  and  the  vendor  thereof  might  de- 
clare such  contract  forfeited,  retain  all  payments  made  there- 
under as  liquidated  damages  and  repossess  himself  of  the 
premises. 

4.  That  on  the day  of ,  A.  D.  19 , 

certain  payment  had  become  due  on  the  said  contract  which 
the  defendants  had  wholly  failed,  neglected,  and  refused  to  pay, 
although  repeatedly  demanded  from  them  by  this  plaintiff,  such 

payments  in  the  aggregate  amounting  to  $ (here 

state  details  of  the  indebtedness  accrued  on  the  contract,  that 
although  this  plaintiff  often  requested  defendants  to  keep  up 
their  payments  and  covenants  in  said  contract,  they  utterly 

failed  and  neglected  so  to  do;  that  on  the day  of 

A.  D.   19 ,  this  plaintiff  served  upon  them  a 

formal  notice  declaring  said  contract  forfeited ;  that  said  notice 
was  duly  followed  by  summary  proceedings  begun  by  this 
plaintiff  before  (here  state  officer  before  whom  summary  pro- 
ceedings were  begun),  and  that  said  proceedings  terminated  in 


§  92]  REMEDYING  DEFECTS  IN  THE  TITLE  185 

a  judgment  duly  rendered  by  said  commissioner  that  plaintiff 

have  judgment  of  restitution  of  said  premises  on  the 

day  of ,  A.  D.  19 ,  all  of  which  reference  to  the 

files  and  records  of  said  commissioner's  court,  file  No. , 

is  hereby  prayed,  which  said  writs  were  on  the day 

of A.  D.  19 ,  recorded  with  the  register  of  deeds 

of county,  Michigan,  in  liber ,  page , 

reference  to  which  is  hereby  prayed. 

5.  That  after  the  plaintiff  had  repossessed  himself  of  the 

said  premises  as  hereinbefore  set  forth,  to-wit,  on  the 

day  of ,  A.  D.  19 .,  said  defendants,  for  the  pur 

pose  of  embarrassing  this  plaintiff  and  casting  a  cloud  on  the 
title  to  said  real  estate,  executed  a  quit  claim  deed  to  (here 
state  vendee  of  the  vendee) ,  for  the  above  described  premises, 

which  deed  has  been  recorded  in  liber in  the  office 

of  the  register  of  deeds  of county. 

6.  That  said  quit-claim  deed  thus  executed  by  the  defendants 
constitutes  a  cloud  upon  the  title  of  this  plaintiff  to  said  lots. 

7.  That  plaintiff  is  wholly  without  adequate  remedy  except 
in  a  Court  of  Equity. 

Wherefore  plaintiff  prays : 

(a)  That  said  quit-claim  deed  above  described  may  be  de- 
creed to  be  null  and  void  and  of  no  effect  whatsoever  as  against 
the  title  of  this  plaintiff  and  that  the  same  be  delivered  up  to 
be  cancelled. 

(b)  That  the  said  defendants  (here  name  them) ,  be  decreed 
to  have  no  right,  title,  or  interest  in  and  to  the  above  described 
real  estate,  either  by  virtue  of  said  land  contract  or  said  quit- 
claim deed. 

(c)  That  the  plaintiff  may  have  permission  to  record  the 
decree  which  may  be  entered  in  said  cause,  and  that  such  de- 
cree, when  recorded,  shall  stand  in  effect  as  a  cancellation  of 
said  deed,  and  as  a  bar  against  any  of  said  defendants  asserting 
title  in  and  to  said  real  estate. 

(d)  That  plaintiff  may  have  such  other,  further,  and  dif- 
ferent relief  as  shall  be  agreeable  to  equity. 


Plaintiff. 

Attorney  for  Plaintiff. 


186  THE  LAW  OF  LAND  CONTRACTS  [§  92 

State  of  Michigan,        ) 

County  of ^ 

John  Doe,  being  first  duly  sworn,  deposes  and  says  that  he 
has  read  the  foregoing  bill  of  complaint  by  him  subscribed  and 
knows  the  contents  thereof  and  that  the  same  is  true  of  his  own 
knowledge  except  as  to  the  matters  therein  alleged  to  be  on  in- 
formation and  belief,  and  as  to  those  matters,  he  believes  it  to 
be  true. 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19 


Notary  Public,  Wayne  County,  Michigan. 
My  commission  expires 


§  93.  Bill  of  Complaint  to  Quiet  Title  to  an  Easement. — The 

following  form  of  bill  of  complaint  may  be  used  to  quiet  the 
title  to  an  easement  consisting  of  the  right  to  overflow  certain 
lands  for  the  purposes  of  a  mill  dam. 

State  of  Michigan,  in  the  Circuit  Court  for  the  County  of 

,  in  Chancery;  to  the  Circuit  Court  for  the  County 

of..- ,  in  Chancery: 

The  plaintiff  herein,  John  Doe,  of  the  City  of ,  County 

of ,  and  State  of  Michigan,  complains  of  the  defend- 
ants herein  (here  name  as  defendants  all  persons  who  claim 
any  interest  in  the  property),  and  respectfully  shows  unto  this 
Honorable  Court  as  follows: 

1.  That  upon,  to-wit:  the day  of ,  A.  D. 

19 (here  state  the  date  that  the  easement  was  first  estab- 
lished), Richard  Roe  was  the  owner  of  the  following  described 
real  estate,  to-wit:  (here  insert  complete  legal  description  of 
the  real  estate) . 

2.  That  on  or  about  said  date,  a  certain  mill  for  the  purpose 
of  grinding  flour,  commonly  known  as  a  grist  mill,  was  located 
upon  said  premises;  that  a  portion  of  said  land  was  used  in 
the  regular  business  of  operating  said  mill,  and  the  remaining 
portion  thereof  was  used  for  the  purpose  of  damming  up  the 
water  thereon,  for  the  purpose  of  maintaining  a  dam  across 
the river,  which  dam  was  used  for  the  purpose  of 


§93] 


REMEDYING   DEFECTS   IN  THE  TITLE  187 


furnishing  power  to  operate  said  mill ;  that  said  dam  was  first 

constructed  on  or  about  the day  of ,  and 

from  the  date  of  the  construction  of  said  dam  as  aforesaid, 
the  same  mill  has  been  operated  continuously,  and  that  all  of 
the  above  described  real  estate  has  been  continuously  over- 
flowed by  the  waters  which  have  been  impounded  for  the  pur- 
pose of  operating  said  mill  by  means  of  the  power  arising  from 
said  dam. 

3.  That  the  said  John  Doe  and  his  assigns,  including  this 
plaintiff,  have  occupied  said  lands  for  the  purpose  of  a  mill 
race  continuously,  openly,  and  adversely,  for  a  period  of  forty 
years,  and  have  thereby  acquired  an  easement  upon  said  lands, 
which  easement  consists  in  the  right  of  this  plaintiff  to  over- 
flow said  lands  for  the  purposes  of  said  mill  race. 

4.  That  this  plaintiff  has  acquired  title  to  said  easement  in 
the  following  manner:  (here  state  plaintiff's  chain  of  title, 
describing  briefly  the  conveyances,  if  any,  to  which  plaintiff 
claims  title). 

5.  That  the  defendants  herein,  who  are  the  owners  of  the 
fee  encumbered  by  such  easement,  are  claiming  that  this  plain- 
tiff does  not  have  the  right  to  overflow  such  lands,  and  are 
circulating  statements  in  and  about  the  neighborhood  to  this 
effect,  and  further  that  certain  of  such  defendants,  (here  in- 
sert their  names),  have  conveyed  certain  parcels  and  tracts 
of  real  estate  covering  the  property  which  is  servient  to  such 
easement  (here  describe  such  conveyances,  giving  legal  de- 
scription of  the  property,  date  of  conveyances  and  to  whom 
same  are  made) ,  and  in  such  conveyance  have  warranted  that 
such  real  estate  was  free  and  clear  from  all  encumbrances, 
which  statements  and  conveyances  cast  a  cloud  on  the  right 
of  the  plaintiff  to  use  and  enjoy  such  easement,  and  tends  to 
embarrass  plaintiff  in  effecting  a  sale  of  said  property,  as  the 
enjoyment  of  said  easement  to  overflow  said  lands  is  abso- 
lutely essential  to  the  operation  of  said  mill,  and  if  the  plain- 
tiff's title  is  defective  in  respect  to  such  easement,  it  would 
be  impossible  for  plaintiff  to  effect  a  sale  of  said  mill  property. 

6.  That  plaintiff  has  no  adequate  relief  except  in  a  court  of 
equity. 


Igg  THE  LAW  OF  LAND  CONTRACTS  [§  93 

Wherefore  plaintiff  prays  that  a  decree  be  entered  quieting 
title  of  this  plaintiff  in  and  to  the  easement  consisting  of  the 
right  to  overflow  said  land  in  the  manner  and  to  the  extent 
hereinbefore  described  and  further  decreeing  that  this  plain- 
tiff is  the  owner  of  such  easement  and  that  all  of  said  defend- 
ants have  no  right  to  interfere  with  plaintiff's  full  and  com- 
plete enjoyment  of  such  easement. 

(a)  That  said  defendants  be  permanently  enjoined  from 
interfering  with  plaintiff's  enjoyment  of  such  easement. 

(b)  That  plaintiff  may  have  such  other,  further,  and  dif- 
ferent relief  in  the  premises  as  shall  be  agreeable  to  equity  and 
good  conscience. 


ss. 


Plaintiff. 
Attorney  for  Plaintiff. 

State  of  Michigan, 
County  of 

John  Doe,  being  first  duly  sworn,  deposes  and  states  that  he 
has  read  the  foregoing  bill  of  complaint  by  him  subscribed  and 
knows  the  contents  thereof  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  therein  alleged  to  be  on 
information  and  belief,  and  as  to  those  matters,  he  believes  it 
to  be  true. 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19 


Notary  Public,  Wayne  County,  Michigan. 
My  commission  expires — - 

§  94.  The  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
in  Actions  to  Quiet  Title. 

SECURITY  INVESTMENT  CO.  v.  MEISTER,  214  Mich.,  337. 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Exhibit  "2,"  The  Contract  Relied  Upon. 

(d)  Answer  and  Cross-Bill. 

(e)  Decree. 

(f)  Authorities  Cited  by  Plaintiff.    Brief  for  Plaintiff. 

(g)  Authorities  Cited  by  Defendant.    Brief  for  Defendant. 


§94] 


REMEDYING   DEFECTS   IN  THE  TITLE  189 


THE    PLEADINGS    AND    BRIEFS    USED    IN    LATE    MICHIGAN 
CASES  IN  ACTIONS  TO  QUIET  TITLE 

SECURITY  INVESTMENT  CO  v.  MEISTER,  214  Mich.,  337. 

(a)  Brief  Statement  of  Fact.— This  was  a  suit  brought  to  quiet  title 
to  certain  land,  which  had  been  purchased  on  land  contract  by  the  de- 
fendant Meister,  and  quit-claimed  to  defendant  Lefton,  after  the  plaintiff 
had  obtained  possession  of  the  land  by  summary  proceedings,  the  defend- 
ant Meister  having  defaulted  in  his  payments  and  plaintiff  had  declared 
the  contract  forfeited.  It  is  the  contention  of  Meister  that  he  should 
be  re-instated  on  the  land  contract  or  an  accounting  and  refund  made 
to  him.  The  decree  granted  a  re-instatement  and  specific  performance  to 
defendant  Meister,  and  on  appeal  was  reversed,  the  court  holding  defend- 
ants to  have  no  interest  or  equity  in  the  land. 

(b)  Bill  of  Complaint. 

STATE  OF  MICHIGAN 

In  the  Circuit  Court  for  the  County  of  Wayne. 

In  Chancery. 

Security  Investment  Co..' 
a   Michigan   Corporation, 
Plaintiff, 
vs.  I  j 

Saul  H.  Meister  and 
Julius  Lefton, 

Defendants 

The  Security  Investment  Company,  a  Michigan  Corporation,  by  Daniel 
R.  Foley,  its  attorney,  respectfully  represents: 

1.  That  it  has  an  equitable  title  in  and  to  certain  premises  situated  in 
the  Village  of  Ecorse,  Wayne  County,  Michigan,  known  and  described  as 
Lots  15-16-17  and  18  of  the  Moore  &  Veale's  subdivision  of  the  south  part 
of  the  Lot  2  of  the  Jonas  Goodell  Estate,  subdivision  of  private  claim 
226  according  to  a  plat  thereof  recorded  in  Liber  32  page  73  of  plats, 
Wayne  County,  Michigan  Records;  and  further  that  neither  of  the  above 
mentioned  defendants  is  in  possession  of  said  premises,  nor  any  part 
thereof. 

2.  That  the  legal  title  to  said  premises  was  formerly  in  Cleophus  T. 
Goodell  and  Philomene  Goodell,  his  wife,  but  that  on  December  24th, 
1915,  the  said  Cleophus  T.  Goodell  died  and  the  legal  title  to  the  said 
premises  is  now  held  by  the  said  Philomene  Goodell  and  the  heirs-at-law 
of  the  said  Cleophus  T.  Goodell. 

3.  That  on  the  sixth  day  of  May,  1915,  the  said  Cleophus  T.  Goodell 
gave  a  land  contract  for  the  said  premises  together  with  other  land  to 
the  Moore  &  Veale  Real  Estate  Corporation,  a  Michigan  corporation, 
which  said  land  contract  is  still  in  full  force  and  effect  and  is  in  no 
way  questioned  by  the  parties  thereto  nor  by  their  heirs,  representatives, 


190  THB  LAW  0F  LAND  CONTRACTS  [§  94 

or  assigns.    A  copy  of  which  said  contract  is  hereto  appended  and  made 
a  part  hereof,  marked  Exhibit  "A,"  to  which  reference  is  prayed. 

4.  That  by  an  assignment  dated  the  fourth  day  of  December,  1916, 
the  said  Moore  &  Veale  Real  Estate  Corporation  duly  transferred  all  its 
right,  title  and  interest  in  and  to  said  premises  together  with  other  lands 
by  virtue  of  said  land  contract  above  mentioned  as  Exhibit  "A,"  unto 
the  Security  Investment  Company,  plaintiff  herein.  That  said  assignment 
is  still  valid  and  subsisting  and  in  no  way  questioned  by  the  parties  to 
the  said  above  mentioned  land  contract  nor  to  the  parties  to  said  assign- 
ment. That  a  copy  of  said  assignment  is  hereto  appended  and  made  a 
part  hereof  marked  Exhibit  "E,"  reference  to  which  is  hereby  prayed. 

5.  That  previous  to  said  assignment  the  said  Moore  &  Veale  Real  Estate 
Corporation  had  by  four  separate  land  contracts  (there  being  one  for 
each  of  11  said  lots),  agreed  to  sell  and  convey  the  same  unto  one 
Thomas  B.  Townsend.  That  subsequent  to  this,  to-wit,  the  29th  day  of 
January,  1916,  the  interest  of  said  Townsend  in  and  to  said  premises  was 
assigned  to  Saul  H.  Meister,  one  of  the  contracts  and  agreed  to  carry 
out  the  agreements  and  covenants  therein  contained.  Copies  of  which 
said  contracts  are  hereto  annexed  marked  Exhibits  "C,"  "D,"  "E"  and  "F," 
and  made  a  part  hereof,  reference  to  which  is  hereby  prayed. 

6.  That  contemporaneous  with  the  assignment  of  the  above  mentioned 
land  contract  from  the  Moore  &  Veale  Real  Estate  Corporation  to  the 
plaintiff  (above  referred  to  as  Exhibit  *'B")  the  said  Moore  &  Veale 
Real  Estate  Corporation  sold,  assigned  and  transferred  all  of  the  right, 
title  and  interest  in  and  to  the  said  land  contracts  with  the  said  Town- 
send,  afterwards  the  said  Meister,  to  this  plaintiff.  Which  said  assign- 
ment was  dated  December  4th,  1916,  and  copies  of  which  said  assignment 
will  be  found  on  the  backs  of  Exhibits  "C,"  "D,"  "E"  and  "F"  hereto 
appended  and  made  a  part  hereof,  reference  to  which  is  hereby  prayed. 

7.  That  said  Saul  H.  Meister  entered  into  the  performance  of  said 
land  contracts  to  him  transfrred  by  the  said  Townsend  and  made  pay- 
ment thereon  both  to  said  Moore  &  Veale  Real  Estate  Corporation  and  to 
the  plaintiff;  but  that  from  and  after  December  17th,  1917,  he  made  no 
further  payments  thereon  nor  has  he  since  nor  any  other  person  in  his 
behalf  nor  in  behalf  of  anyone  else.  Further  that  he  failed  entirely  to 
pay  the  Ecorse  Village  taxes  and  the  state  and  county  taxes  for  1917 
as  by  his  said  contract  he  had  agreed  to  do. 

8.  That  though  often  requested  thereafter  to  make  up  his  arrears  and 
to  keep  up  his  payments  and  covenants  in  said  contracts  after  said 
December  17th,  1917,  he  utterly  neglected  and  failed  to  carry  out  said 
covenants  so  that  on  July  2nd,  1918,  this  plaintiff  had  served  upon  him 
a  formal  notice  of  forfeiture  of  said  contracts  and  demand  for  posses- 
sion of  said  premises.  That  said  notice  and  demand  was  duly  followed 
by  summary  proceedings  begun  by  this  plaintiff  against  him  before  the 
Honorable  Henry  G.  Nicol,  one  of  the  Circuit  Court  Commissioners  of 
and  for  Wayne  County,  Michigan.     That  said  proceedings  culminated  in 


S  94]  REMEDYING   DEFECTS  IN  THE  TITLE  191 

a  judgment  duly  rendered  by  said  commissioner  that  the  plaintiff  have 
judgment  of  restitution  of  said  premises  on  July  15th,  1918.  All  of 
which  a  reference  to  the  files  and  records  of  said  Commissioner's  Court, 
causes  No.  482,  145  to  482,  148  inclusive,  which  is  hereby  prayed,  will  more 
fully  appear.  That  subsequently  on  August  29th,  1918,  Writs  of  Rest! 
tution  were  duly  issued  out  of  said  court  and  were  on  said  date  returned 
duly  served.  Which  said  writs  were  since  and  to-wit,  July  24th,  1919, 
recorded  with  the  Register  of  Deeds  of  Wayne  County,  Michigan,  in 
Liber  1281,  pages  270  to  273  inclusive  of  such  writs,  reference  to  which 
is  hereby  prayed. 

9.  That  in  said  proceedings,  said  Saul  H.  Meister,  appeared  in  person 
and  with  his  attorney,  one  Simeon  Cugell.  That  said  Cugell  in  behalf 
of  said  Meister  prevailed  upon  the  attorney  for  this  plaintiff,  Daniel  R. 
Foley,  to  withhold  the  issuance  of  said  Writs  of  Restitution  for  the  period 
of  ten  days  beyond  the  thirty  days  allowed  by  law  for  such  payment  after 
judgment  had  been  entered  as  above  set  forth  and  promised  to  pay  the 
amount  due  with  costs.  That  said  Daniel  R.  Foley  held  open  said  matter 
not  only  for  the  said  extra  ten  days  above  referred  to  but  a  further 
period  of  four  days  before  having  said  Writs  of  Restitution  issued  and 
served. 

10.  That  subsequent  thereto  in  September  and  October,  1918,  said  Saul 
H.  Meister  by  himself  in  person  and  said  Simeon  Cugell  besought  Daniel 
R.  Foley  to  intercede  in  behalf  of  said  Saul  H.  Meister  with  this  plaintiff 
to  the  end  that  he  might  be  reinstated  in  regard  to  said  land  contracts 
and  agreed  and  promised  that  if  this  plaintiff  would  so  do  he  would  pay 
all  the  arrears  in  said  contract,  the  village  and  state  taxes  which  had 
been  paid  by  said  plaintiff,  the  mortgage  tax  which  said  plaintiff  had  also 
paid,  the  cost  of  said  suit  and  the  attorney  fee  incident  thereto.  That 
the  plaintiff  was  at  the  time  willing  to  enter  into  negotiations  to  that 
end  and  so  instructed  said  Daniel  R.  Foley,  who  in  turn  communicated 
the  same  to  said  Meister.  That  said  Meister  along  about  November  2nd, 
1918,  suddenly  brought  such  negotiations  to  an  end  by  coming  to  the 
office  of  the  said  Daniel  R.  Foley  and  attempting  to  make  a  tender  of  the 
amount  which  would  then  have  been  due  had  said  contract  been  in  full 
force  and  effect  at  the  time.  That  said  Foley  had  at  the  time  no  authority 
to  accept  such  tender,  being  only  authorized  to  accept  a  settlement  upon 
the  terms  which  said  Meister  had  laid  down  as  aforesaid  when  he  asked 
said  Foley  to  intercede  in  his  behalf.  That  nothing  more  was  done 
or  said  with  relation  to  said  contracts  either  by  said  Meister  or  this 
plaintiff  at  said  time. 

11.  That  said  Saul  H.  Meister  along  the  middle  part  of  July,  1919,  pro- 
cured another  attorney,  one  Thomas  Thompson,  to  approach  the  said 
Daniel  R.  Foley  with  reference  to  said  lots.  Said  Thompson  who  claimed 
now  that  he  had  an  interest  in  said  lots  by  virtue  of  some  arrangement 
with  one  Julius  Lefton.  And  that  he  wished  said  lots  to  be  granted  to 
him  and  said  old  contracts  reinstated  on  payment  of  the  amount  at  that 


192  THE  LAW  0F  LAND  CONTRACTS  [§  94 

time   due   thereon.     Said  Thompson  exhibiting  to  said   Foley  a  certain 
quit-claim  deed  as  the  basis  of  said  Meister's  claim  at  the  time. 

12.  That  said  Foley  at  once  informed  his  former  clients  of  the  affair 
and  began  an  investigation  and  from  said  investigation  of  the  record  of 
Register  of  Deeds  of  the  County  of  Wayne  found  out  the  following  facts: 

(a)  That  on  the  fourteenth  day  of  June,  1918,  there  was  recorded  in 
said  Register's  Office  a  certain  quit-claim  deed  purporting  to  have  been 
made  by  said  Saul  H.  Meister  as  vendor  and  Julius  Lefton  as  vendee  on 
August  13th,  1917,  which  embraced  all  of  said  lots  first  above  mentioned, 
said  deed  being  recorded  in  Liber  1252  deeds,  page  494,  Wayne  County 
Records,  a  copy  of  which  is  also  hereto  appended  marked  Exhibit  "G," 
and  made  a  part  of  this  bill  of  complaint,  reference  to  which  records 
and  exhibits  is  hereby  prayed. 

(b)  That  on  the  fifteenth  day  of  October,  1918,  another  quit-claim  deed 
was  recorded  in  said  register's  office  dated  October  14th,  1918,  which  said 
deed  purported  to  be  a  subsequent  quit  claim  of  said  lots  by  said  Meister 
to  said  Lefton  for  the  purpose  of  correcting  an  error  in  the  first  deed 
above  mentioned.  Which  said  deed  was  recorded  in  Liber  1308,  page  19 
of  said  records,  a  copy  of  which  is  also  hereto  appended  and  made  a 
part  of  this  bill,  marked  Exhibit  "H,"  reference  to  which  is  hereby  prayed. 

13.  That  said  deeds  were  fraudulent,  as  the  plaintiff  believes,  and  made 
for  the  purpose  of  defrauding  and  vexing  this  plaintiff  and  were  wholly 
without  consideration  and  are  and  should  be  declared  null  and  void  and 
of  no  effect  whatever  as  against  any  right,  title  or  interest  which  this 
plaintiff  has  in  or  to  said  lots.  That  said  Julius  Lefton,  as  this  plaintiff 
is  informed  and  believes,  was  subject  to  the  draft  in  the  late  world 
war,  and  was  inducted  into  service  some  time  during  1917  or  1918.  That 
no  mention  of  said  quit-claim  deed  of  August  13th,  1917,  was  ever  made 
to  this  paintiff,  nor  was  it  in  any  way  aware  of  its  existence  until  said 
middle  of  July,  1919.  That  this  plaintiff  never  consented  either  to  the 
transfer  of  said  contracts  nor  of  said  Meister's  interest  in  said  land, 
nor  was  it  asked  to  so  consent,  although  by  the  expressed  terms  of  said 
contracts,  such  consent  was  required  before  such  transfer  could  be  made. 
That  during  the  fall  of  1917,  after  said  deed  was  made,  said  Meister  held 
himself  out  as  a  vendee  under  said  contracts  and  made  payments  thereon 
up  to  December  of  said  year.  That  he  held  himself  out  and  acted  as  the 
only  interested  party  during  all  the  said  Circuit  Court  Commissioner  pro- 
ceedings, and  also  throughout  all  the  negotiations  subsequent  thereto  as 
above  stated,  and  never  during  all  this  said  period  mentioned  either  to 
this  plaintiff  or  any  one  acting  in  its  behalf,  that  anyone  else  was  in  any 
way  interested  or  had  or  claimed  any  right,  title  or  interest  in  or  to 
said  lots.  That  by  various  conversations,  postals,  letters  and  in  every 
other  manner  said  Meister  declared  himself  to  be  the  owner  of  the  title 
of  said  lots  as  given  by  virtue  of  said  contracts  after  said  deeds  were 
made,  and  even  in  July,  1919,  by  his  attorney,  said  Thompson,  claimed 
to  be  the  real  party  in  interest,  and  offered  to  remove  the  cloud  on  the 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  193 

title  thereto  caused  by  said  quit-claim  deeds  provided  he  were  rein- 
stated and  recognized  as  the  true  and  valid  and  subsisting  vendee  therein. 
That  no  stamps  were  affixed  to  either  of  said  deeds  as  would  have  been 
required  had  they  been  given  for  a  valuable  consideration. 

14.  That  on  the  same  day  that  said  first  quit-claim  deed  was  recorded 
several  other  like  quit-claim  deeds  from  said  Meister  to  said  Lefton  were 
made,  none  of  them  bearing  any  revenue  stamps,  of  various  properties 
In  regard  to  which  this  plaintiff  believes  said  Meister  was  in  like  default. 
And  that  at  other  times  still  other  like  deeds  were  made  by  him  and 
recorded,  in  all  of  which  this  plaintiff  believes  and  has  good  reason  to 
believe,  said  Meister  attempted  to  evade  his  just  obligations.  And  in 
particular  with  regard  to  the  two  quit-claim  deeds  herein  complained 
of  this  plaintiff  believes  that  they  were  the  result  of  a  deliberate  and 
cunning  attempt  on  the  part  of  said  Meister  to  defraud  it  by  perverting 
the  laws  in  force  with  regard  to  men  in  the  United  States  service,  to 
his  own  advantage,  he  being  at  the  time  a  single  man,  but  at  no  time 
in  such  service  for  some  reason  or  another. 

15.  This  plaintiff  has  no  definite  knowledge  as  to  whether  said  Lefton 
participated  in  said  fraud,  but  that  from  all  the  circumstances  believes 
either  he  knew  nothing  of  said  deeds  or  participated  in  the  same.  That 
it  believes  and  has  good  reason  to  believe,  that  said  Lefton  never  paid 
any  actual  consideration  for  said  lots,  nor  had  any  actual  interest  therein, 
but  either  suffered  his  name  to  be  thus  used  as  a  vehicle  of  fraud,  or  was 
In  ignorance  of  the  transaction.  That  said  land  contracts  each  provided 
that  the  interest  of  the  vendee  could  not  be  transferred  without  the 
written  consent  of  the  vendor.  That  such  consent  was  never  given  nor 
asked  by  or  of  this  plaintiff.  That  if  in  fact  said  Lefton  took  any  active 
part  in  said  transaction,  he  had  notice  of  this  restriction,  and  acted  at 
his  peril  in  accepting  any  conveyance  from  said  Meister.  That  said 
Lefton  has  never  by  himself  nor  anyone  acting  in  his  behalf,  asserted  any 
right,  title  or  interest  in  or  to  said  lots  by  virtue  of  said  deeds,  but  on 
the  contrary,  as  this  plaintiff  is  informed  and  believes,  said  Meister  now 
claims  to  have  whatever  interest  said  Lefton  might  have  had,  and  is 
attempting  to  mulct  this  plaintiff  with  such  claims.  That  said  Meister 
has  approached  others  with  said  old  contracts,  trying  to  unload  the 
same  upon  them  to  his  own  profit  and  at  the  expense,  annoyance  and 
vexation  of  this  plaintiff. 

16.  That  this  plaintiff,  being  at  the  time  in  ignorance  of  said  deeds 
and  the  cloud  on  its  title  thereby,  sold  said  lots  to  another  party  on 
April  24th,  1919,  whose  interest  would  also  be  affected  by  said  deeds  and 
whom  plaintiff  feels  bound  to  protect. 

17.  That  said  deeds  constitute  a  cloud  upon  the  title  of  this  plaintiff 
to  said  lots,  and  being  without  adequate  remedy  except  in  equity,  there- 
fore prays: 

18.  (a)  That  each  of  said  defendants  may  be  held  to  answer  under 
oath  as  to  the  facts  and  circumstances  stated  in  this  bill  and  that  each 


194  THE  LAW  OF  LAND  CONTRACTS  [§  94 

disclose  what,  if  any,  right,  title  or  interest  he  claims  at  present  in  or 
to  said  lots  and  in  particular  that  said  Lefton  discovered  to  this  court 
what  part  he  actually  played  in  said  transaction. 

(b)  That  the  said  quit-claim  deeds  above  mentioned  may  be  declared 
fraudulent,  null  and  void  of  any  effect  whatsoever  as  against  the  title 
of  this  plaintiff  and  that  the  same  be  delivered  up  to  be  cancelled. 

(c)  That  said  defendants,  Saul  H.  Meister  and  Julius  Lefton,  be  decreed 
to  have  no  right,  title  or  interest  in  or  to  said  lots  either  by  virtue  of 
said  land  contracts  or  said  deeds. 

(d)  That  the  cloud  placed  upon  the  title  of  this  plaintiff  be  removed 
and  the  decree  in  this  cause  may  be  registered  with  the  Register  of  Deeds 
in  the  County  of  Wayne  and  shall  stand  in  effect  as  cancellation  of  both 
of  said  deeds  and  as  a  bar  against  anyone  asserting  any  right,  title  or 
claim  in  or  to  said  lots. 

(e)  That  each  of  said  defendants  be  restrained  and  enjoined  from  as- 
serting or  representing  that  they  or  anyone  claiming  under  them  have 
any  right,  title  or  interest  in  or  to  said  lots,  and  further  from  placing  any 
further  cloud  upon  this  plaintiff's  title  thereto. 

(f)  That  this  plaintiff  may  have  such  other  and  further  relief  as  shall 
be  agreeable  to  equity. 

SECURITY  INVESTMENT  COMPANY, 

(Signed)  By  Daniel  R.  Foley, 

Its  Attorney. 

State  of  Michigan,  County  of  Wayne,  ss. 

Daniel  R.  Foley  being  duly  sworn  deposes  and  says,  that  he  is  the 
attorney  for  the  above  named  plaintiff  and  makes  this  affidavit  in  its 
behalf,  being  duly  authorized  so  to  do,  that  he  further  makes  the  same 
for  the  reason  that  said  plaintiff  is  not  a  resident  of  Wayne  County  and 
further  that  he  has  a  better  acquaintance  with  the  facts  and  circum- 
stances set  forth  in  this  bill  than  any  one  of  the  officers  of  said  plaintiff; 
that  he  has  read  the  above  bill  of  complaint  by  him  subscribed  and  knows 
the  contents  thereof  and  that  the  same  is  true  and  to  his  own  knowledge 
except  as  to  matters  therein  alleged  on  information  and  belief  and  as  to 
these  matters  he  believes  it  to  be  true. 

(Signed)     Daniel  R.  Foley. 

Subscribed  and  sworn  to  before  me  this  Sth  day  of  September,  A.  D. 
1918. 

Eugene  A.  Walling. 
Notary  Public,  Wayne  County,  Michigan. 
My  commission  expires  March  13th,  1920. 

Daniel  R.  Foley, 

Attorney  for  Plaintiff, 
1626  Penobscot  Bldg., 
Detroit,  Mich. 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  195 

State  of  Michigan  ) 

]■  ss. 
County  of  Wayne,  \ 

(c)  Exhibit  "2,"  the  Contract  Relied  Upon. — This  contract,  made  this 
19th  day  of  October  in  the  year  One  thousand  nine  hundred  and  fifteen 
between  Moore  &  Veale  Real  Estate  Corporation,  Inc.,  in  Michigan,  of 
the  City  of  Detroit,  Wayne  County,  Michigan,  parties  of  the  first  part  and 
Thomas  B.  Townsend  party  of  the  second  part. 

Witnesseth:  The  parties  of  the  first  part,  in  consideration  of  the  pay- 
ments to  be  made  and  the  agreements  to  be  performed  by  the  party  of 
the  second  part  as  hereinafter  set  forth,  agree  to  sell  and  convey  to  the 
said  party  of  the  second  part,  the  following  described  land,  situated  In 
the  Village  of  Ecorse,  Wayne  County,  Michigan,  to-wit:  Lot  No.  Seventeen 
(17)  of  the  Moore  &  Veale's  Ecorse  Subdivision  of  the  south  part  of  lot 
two  (2)  of  the  Jonas  Goodell  Estate  Sub.,  P.  C.  Two  Hundred  Twenty- 
Six  (226)  Village  of  Ecorse,  Wayne  County,  Michigan. 

For  the  sum  of  Eight  Hundred  ($800.00)  Dollars,  which  the  said  party 
of  the  second  part  agrees  to  pay  to  the  said  parties  of  the  first  part  as 
follows:  Eighty  ($80.00)  dollars,  at  the  date  hereof,  and  the  remaining 
Seven  Hundred  Twenty  ($720.00)  dollars  at  the  rate  of  Eight  ($8.00)  dol- 
lars or  more  per  month.  The  full  purchase  price  to  be  paid  on  or  before 
five  years  from  date,  including  interest  on  all  sums  at  any  time  unpaid 
hereon  at  the  rate  of  six  per  cent,  per  annum,  payable  monthly  on  the 
19th  day  of  each  and  every  month  in  each  and  every  year  until  said 
principal  sum  is  fully  paid. 

It  is  a  condition  of  this  agreement  that  the  party  of  the  second  part 
his  heirs  and  assigns,  shall  use  the  premises  herein  described  for  resi- 
dence purposes  only  except  the  Jefferson  Avenue  frontage.  Price  In- 
cludes water,  sewer,  sidewalks  and  street  grading. 

Said  party  of  the  second  part  further  agrees  to  enter  said   premises 

for  taxation  in  his  own  name  and  to  pay  within  days  after 

the  same  shall  become  payable  all  taxes,  assessments  extraordinary  as 
well  as  ordinary,  that  may  be  levied  thereon,  including  the  state  and 
county  taxes  thereon  for  the  year  1915. 

Said  party  of  the  second  part  further  argees  that  he  shall  and  will 
keep  the  building  and  improvements  upon  and  to  be  placed  upon  said 
premises  insured  in  a  responsible  insurance  company,  and  to  an  amount 
to  be  approved  by  the  parties  of  the  first  part,  for  the  benefit  of  the 
parties  of  the  first  part  until  the  purchase  money  is  fully  paid;  and  that 
said  party  of  the  second  part  shall  and  will  keep  the  buildings  and  all 
other  improvements  upon  said  premises  in  good  repair. 

In  case  the  party  of  the  second  part  shall  fail  to  pay  all  taxes  and 
assessments  or  to  insure  the  premises  as  hereinbefore  provided,  the 
parties  of  the  first  part  may  pay  and  discharge  said  taxes  and  assess- 
ments and  effect  such  insurance,  and  the  amounts  paid  therefore  by  the 
parties  of  the  first  part  shall  be  deemed  a  part  of  the  principal  sum 
hereof,  and  become  payable  forthwith  with  interest  at  the  rate  of  seven 
per  cent,  per  annum  until  paid. 


196  THE  LAW  OF  LAND  CONTRACTS  [§  94 

It  is  agreed,  by  the  parties  hereto,  that  the  said  party  of  the  first  part, 
on  receiving  payment  in  full  of  said  principal  and  interest  and  of  all 
other  sums  chargeable  in  favor  hereon,  and  the  performance  of  all  the 
agreements  of  the  party  of  the  second  part  herein  contained,  in  the  man- 
ner and  at  the  time  above  limited  therefor  and  upon  the  surrender  of 
this  contract  shall  and  will  at  their  own  and  proper  cost  and  expense 
furnish  a  Union  Trust  Company  Abstract  of  Title  and  execute  and  deliver 
to  the  said  party  of  the  second  part,  a  good  and  sufficient  Warranty  Deed 
of  above  described  premises,  free  and  clear  of  and  from  all  liens  and 
encumbrances,  except  such  as  may  have  accrued  on  the  said  land  sub- 
sequent to  the  date  hereof,  by  or  through  the  negligence  of  the  said 
party  of  the  second  part,  and  which  deed  shall  contain  the  same  building 
restrictions  contained  in  this  contract. 

It  is  further  argeed,  that  the  party  of  the  second  part  shall  have  pos- 
session of  said  land  upon  the  execution  of  this  contract,  and  shall  be 
entitled  to  retain  possession  thereof  so  long  as  there  is  no  default  upon 
his  part  in  carrying  out  the  terms  of  this  contract. 

It  is  further  agreed,  by  the  parties  hereto,  that  time  shall  be  of  the 
essence  of  this  contract  and  that  if  the  said  party  of  the  second  part 
shall  fail  to  make  any  of  the  payments  or  perform  any  of  the  conditions 
above  set  forth,  in  the  manner  and  at  the  time  above  limited  therefor,  the 
parties  of  the  first  part  shall,  immediately  after  such  failure,  have  the 
right  to  declare  this  contract  void,  and  to  retain  whatever  may  have 
been  paid  hereon,  and  the  premises,  together  with  the  buildings  and 
improvements  thereon  and  may  consider  and  treat  the  party  of  the 
second  part  as  their  tenant  holding  over  without  permission,  and  may 
take  immediate  possession  of  the  premises  and  remove  the  party  of  the 
second  part  therefrom. 

It  is  further  agreed,  by  the  parties  hereto,  that  the  said  party  of  the 
second  part  shall  not  assign  this  contract  without  the  consent  of  the 
parties  of  the  first  part  being  first  endorsed  in  writing  hereon  and  on  the 
duplicate  copy  hereof  held  by  the  parties  of  the  first  part. 

The  covenants,  conditions  and  agreements  herein  contained  shall  be 
for  the  benefit  of  and  binding  upon  the  several  parties  hereto,  and  their 
respective  successors,  heirs,  representatives  and  assigns. 

In  witness  whereof,  the  parties  hereto  have  executed  this  agreement 
in  duplicate  the  day  and  year  first  above  written. 

(Signed)     Moore  &  Veale  Real  Est.  Corp.  (L.  S.) 
By  S.  J.  Moore.  (L.  S.) 

Thomas  B.  Townsend.  (L.  S.) 

In  Presence  of 

A.  U.  Smith. 

Carey  J.  Cole. 

State  of  Michigan,  County  of  Wayne,  ss. 

On  the  fourth  day  of  December  in  the  year  one  thousand  nine  hundred 
and  sixteen,  before  me,  a  Notary  Public  in  and  for  said  county,  per- 
sonally appeared  Samuel  J.  Moore  to  me  personally  known,  who,  being 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  197 

by  me  duly  sworn,  did  say  that  he  is  the  Secretary  and  Treasurer  of 
the  corporation  named  in  and  which  executed  the  within  instrument 
and  that  the  seal  affixed  to  said  instrument  is  the  corporate  seal  of 
said  corporation,  and  that  said  instrument  was  signed  and  sealed  in 
behalf  of  said  corporation  by  authority  of  its  board  of  directors  and 
said  Samuel  J.  Moore  acknowledged  said  instrument  to  be  the  free  act 
and  deed  of  said  corporation. 

(Signed)     Carey  J.  Cole. 
Notary  Public,  Wayne  County,  Mich. 
My  commission  expires  Oct.  12,  1920. 

Entered  on  the  back  of  said  contract  is  the  following  assignment: 

Detroit,  December  4th,  1916. 
In  consideration  of  One  Dollar  and  other  good  and  valuable  considera- 
tions to  it  in  hand  paid  by  the  Security  Investment  Company,  it  does 
hereby  sell,  assign  and  transfer  unto  the  Security  Investment  Company 
all  its  right,  title  and  interest  in  and  to  the  within  contract  and  advantages 
to  be  derived  therefrom,  and  said  assignee  hereby  agrees  to  carry  out 
the  terms  of  the  within  contract. 

Moore  &  Veale  Real  Estate  Corporation. 

(Signed)     By  S.  J.  Moore, 
Secretary  and  Treasurer. 

(The  vendee  in  the  above  contract,  Thomas  B.  Townsend,  assigned  his 
interest  to  Saul  H.  Meister  on  Jan.  29,  1916,  who  agreed  to  carry  out 
the  agreements  and  covenants  therein  contained.) 

(d)  Answer  and  Cross-Bill. —  (Caption.)  Said  defendants  answering  the 
bill  of  complaint  in  the  above  entitled  cause  say: 

1.  Defendants  have  no  knowledge  of  the  matters  stated  in  paragraphs 
1,  2,  3  and  4  of  said  bill,  but  are  informed  and  believe  that  said  alle- 
gations are  true. 

2.  Defendants  admit  the  allegations  of  paragraphs  5,  6,  7,  8  and  9  of 
said  bill  of  complaint. 

3.  Defendants  admit  as  alleged  in  paragraph  10  of  said  bill  of  com- 
plaint that  defendant  Meister  entered  into  negotiations  with  Daniel  B. 
Foley,  attorney  for  plaintiff,  for  the  reinstatement  of  said  contracts,  and 
say  that  said  negotiations  resulted  in  an  agreement  that  said  contracts 
were  to  be  reinstated  on  payment  by  defendant  Meister  to  said  Foley 
of  all  the  arrears  on  said  contracts,  the  taxes  paid  by  plaintiff,  including 
mortgage  tax,  the  cost  of  said  suit  and  a  reasonable  attorney  fee  for 
plaintiff's  attorney;  that  In  pursuance  of  said  agreement,  defendant 
Meister  tendered  to  said  Foley  the  sum  of  $435  or  thereabouts,  being 
the  total  amount  of  said  arrears,  taxes  and  costs,  and  offered  to  pay 
such  further  sum  of  (as  might  be  reasonable)  dollars  as  attorney's  fee; 
that  said  Foley  refused  to  accept  the  amount  so  tendered,  demanding 
an  attorney  fee  of  one  hundred  dollars,  which  defendant  considered  un- 
reasonable and  refused  to  pay;  that  no  objection  to  said  tender  was  made 


198  THE  LAW  OF  LAND  CONTRACTS  [§  94 

except  as  to  the  amount  of  attorney  fee  and  that  said  negotiations  were 
terminated  by  such  disagreement  as  to  the  amount  of  attorney  fee  and 
for  no  other  reason. 

4.  Defendants  admit  as  alleged  in  paragraph  11  of  said  bill  that  defend- 
ant Meister,  through  Attorney  Thomas  W.  Thompson,  attempted  to  reopen 
negotiations  for  the  reinstatement  of  said  contracts  and  that  said  Thomp- 
son exhibited  a  Quit-Claim  Deed  from  defendant  Meister  to  defendant 
Lefton. 

5.  Defendants  admit  the  allegations  of  paragraph  12  of  said  Bill  of 
Complaint. 

6.  Defendants  deny  the  allegations  of  paragraphs  13,  14  and  15  of  said 
bill  in  so  far  as  it  is  alleged  that  said  deeds  were  in  any  way  fraudulent 
or  that  said  deeds  and  the  interest  of  said  Lefton  thereunder  were  con- 
cealed from  plaintiff  for  any  fraudulent  or  wrongful  purpose. 

Defendants,  answering  said  paragraphs  13,  14  and  15,  say  that  said 
Quit-Claim  Deeds  were  given  by  defendant  Meister  to  defendant  Lef- 
ton as  security  for  an  indebtedness  justly  due  from  said  Meister  to 
Lefton,  and  that  said  deeds  were  given  as  security  for  the  reason  that 
said  Lefton  had  prior  to  August  14,  1917,  the  date  said  deeds  were 
executed,  entered  the  military  service  of  the  United  States,  and  it  was 
desired  to  protect  his  interests  so  far  as  possible  during  his  absence 
in  such  military  service;  that  at  the  time  said  Quit-Claim  Deeds  were 
executed,  said  Meister  was  not  in  default  in  his  payments  under  said 
contracts,  but  continued  his  payments  for  several  months  thereafter; 
that  said  deeds  were  recorded  before  notice  of  forfeiture  of  said  contracts 
was  served  on  said  Meister;  that  said  Meister  did  not  set  up  the  rights  of 
said  Lefton  under  said  deeds  in  the  proceedings  before  the  Circuit  Court 
Commissioner  or  in  the  negotiations  for  settlement  because  he  expectd 
to  be  able  to  redeem  or  reinstate  his  rights  under  said  contracts  and  thus 
to  reinstate  the  security  of  said  Lefton  created  by  said  deeds.  And 
defendants  deny  that  either  of  said  defendants  is  attempting  or  has 
attempted  to  defraud  or  injure  any  person  by  means  of  said  contracts. 

7.  Defendants  have  no  knowledge  of  the  matters  set  forth  in  Paragraph 
16  of  said  Bill  of  Complaint  and  leave  plaintiff  to  its  proofs,  but  say 
that  if  such  sale  was  made,  the  purchaser,  as  defendants  are  informed 
and  believe,  would  have  had  notice  of  the  rights  of  said  Lefton  under 
said  Quit-Claim  Deeds  and  consequently  of  the  rights  of  said  Meister  by 
reason  of  the  record  of  said  Quit-Claim  Deeds,  if  not  otherwise  informed 
of  such  interests. 

8.  Defendants  deny  that  plaintiff  is  entitled  to  the  relief  prayed  in  said 
Bill  of  Complaint  or  any  other  relief  in  the  premises. 

Defendants  by  way  of  Cross-Bill  say: 

1.  That  defendant  Meister  has  paid  under  said  contracts  a  large  sum 
of  money,  to-wit:  the  sum  of  one  thousand  and  eighty-eight  dollars; 
that  after  the  judgment  rendered  by  the  Circuit  Court  Commissioner  as 
set  forth  in  said  Bill  of  Complaint,  defendant  Meister  entered  into  an 


§  94]  REMEDYING   DEFECTS  IN  THE  TITLE  199 

agreement  with  the  plaintiff  substantially  as  set  forth  in  the  Bill  of 
Complaint  and  hereinbefore  in  the  answer  for  the  reinstatement  of  said 
contracts,  by  the  payment  of  the  amounts  in  arrears  on  said  contracts, 
taxes  paid  by  plaintiff,  costs  of  suit  and  a  reasonable  attorney  fee,  and 
that  he  tendered  to  the  attorney  for  the  plaintiff  the  amount  bo  agreed 
upon,  including  a  reasonable  attorney  fee,  but  that  the  attorney  for 
plaintiff  refused  to  accept  said  tender  claiming  an  unreasonably  large 
attorney  fee. 

2.  That  defendants  are  willing  and  have  at  all  times  been  willing  and 
since  the  time  of  said  agreement  have  been  able  to  pay  the  amount  so 
agreed  upon  and  all  payments  subsequently  accruing  upon  said  contracts, 
and  said  defendants  hereby  agree  to  pay  to  plaintiff  in  consideration  of 
the  reinstatement  of  said  contract  all  sums  in  arrears  upon  said  contract 
Including  all  taxes  paid  by  plaintiff,  costs  of  suit  before  Circuit  Court 
Commissioner  and  any  other  costs  and  expenses  including  attorney  fees 
which  this  court  may  find  to  be  reasonable  and  proper. 

Defendant  therefore  prays: 

1.  That  the  court  may  take  an  accounting  of  the  amount  due  on  said 
contract  for  principal  and  interest  and  taxes  paid  by  plaintiff,  and  of  all 
other  costs  and  expenses  including  attorney  fees  reasonably  due  to  said 
plaintiff  from  defendants,  and  may  fix  and  determine  the  amount  justly 
due  from  said  defendants  to  plaintiff. 

2.  That  the  court  require  plaintiff  on  receiving  payment  of  such  sum 
to  reinstate  said  contracts  in  full  force  and  effect,  to  receive  the  pay- 
ments therafter  falling  due  and  to  convey  to  defendants  or  their  assigns, 
upon  the  completion  of  said  contract,  as  therein  provided. 

3.  That  if  any  other  person  is  found  to  have  any  interest  in  said 
property  under  or  through  plaintiff,  that  such  person,  unless  found  to  have 
rights  superior  to  those  of  defendants,  be  made  a  party  to  this  suit  and 
decreed  to  hold  such  interest  subject  to  the  rights  of  defendants  under 
said  contracts. 

4.  That  if  the  court  shall  find  it  to  be  impossible  or  inequitable  to  re- 
quire the  reinstatement  of  said  contract  at  this  time,  an  accounting 
be  taken  of  the  amount  paid  by  defendants  on  said  contracts  and  that 
plaintiff  be  required  to  refund  to  defendants  the  amount  of  such  payment, 
after  deducting  all  reasonable  costs  and  charges. 

5.  That  defendants  have  such  other  relief  in  the  premises  as  may  be 
deemed  equitable. 

(Signed)     Saul  H.  Meister. 
Simeon  Cugell,  Julius  Lefton. 

Attorney  for  Defendants.  By  Saul  H.  Meister. 

State  of  Michigan,  County  of  Wayne,  ss. 

On  this  4th  day  of  February,  1920,  before  me,  a  Notary  Public,  per- 
sonally appeared  Saul  H.  Meister,  one  of  the  defendants  named  in  and 
who  subscribed  the  foregoing  Bill  of  Complaint,  who,  being  duly  6worn, 


200  THE  LAW  0F  LAND  CONTRACTS  [§94 

deposes  and  says  that  he  has  read  the  foregoing  Bill  of  Complaint  by 
him  subscribed  and  that  the  facts  therein  stated  are  true  of  his  own 
knowledge  except  as  stated  to  be  on  information  and  belief  and  that  as 
to  those  matters  he  believes  it  to  be  true. 

Grace  Cox, 
Notary  Public,  Wayne  County,  Mich. 
My  commission  expires  October  3,  1921. 

(e)  Decree. —  (Caption.)  At  a  session  of  the  Circuit  Court  for  the 
County  of  Wayne  in  Chancery,  held  at  the  courtroom  thereof  in  the  City 
of  Detroit,  on  January  26th,  1921. 

Present:  Hon.  Henry  A.  Mandell,  Circuit  Judge. 

This  cause  having  come  on  to  be  heard  on  the  pleadings  on  file  and 
proofs  taken  in  open  court,  and  the  court  having  duly  considered  the  same 

The  court  finds: 

1.  That  the  quit-claim  deeds  from  Saul  H.  Meister  to  Julius  Lefton 
referred  to  in  the  Bill  of  Complaint  as  Exhibits  G  and  H,  and  recorded 
in  Liber  1252  of  Deeds,  page  494,  and  in  Liber  1308  of  Deeds,  page  19, 
Wayne  County  Records,  were  executed  and  delivered  by  defendant 
Meister  to  defendant  Lefton  to  secure  a  certain  indebtedness  from  said 
Meister  to  said  Lefton ;  and  that  on  the  date  of  the  hearing  of  this  cause, 
said  indebtedness  had  been  fully  paid  and  discharged. 

2.  That  on  the  19th  day  of  November,  1920,  defendant  Saul  H.  Meister 
was  indebted  to  the  plaintiff  under  the  four  contracts  referred  to  in  the 
Bill  of  Complaint  as  Exhibits  C,  D,  E  and  F,  and  hereinafter  more  fully 
described,  in  the  sum  of  Three  Thousand  Sixty-Six  and  33/100  ($3,066.33) 
Dollars,  which  sum  includes  the  amount  due,  both  principal  and  interest, 
on  said  contracts  and  taxes  paid  by  the  plaintiff  with  interest  which  by 
the  terms  of  said  contract  were  payable  by  said  defendant  Meister. 

3.  That  on  the  date  of  hearing  of  this  cause,  one  Charles  L.  Robertson, 
and  one  Samuel  J.  Moore,  and  one  J.  M.  Duncan,  claimed  certain  rights 
or  interests  in  the  aforesaid  land  contracts  and  the  property  therein 
described,  by  virtue  of  and  under  conveyances  from  the  plaintiff  made 
and  executed  subsequent  to  July  24th,  1919;  and  that  said  parties  then 
and  there  had  knowledge,  notice  and  information  of  the  interest  of 
defendant  Meister  in  and  to  said  contracts  and  property. 

It  Is  Therefore  Ordered,  Adjudged  And  Decreed  As  Follows: 

(a)  That  the  aforesaid  quit-claim  deeds  from  defendant  Saul  H.  Meister 
to  defendant  Julius  Lefton  be,  and  the  same  are  hereby  vacated  cancelled 
and  set  aside. 

(b)  That  defendant  Saul  H.  Meister  be,  and  is  hereby  relieved  from 
forfeiture  of  said  contracts. 

(c)  That  within  thirty  (30)  days  herefrom  defendant  Meister  deposit 
with  the  clerk  of  this  court,  the  aforesaid  sum  of  three  thousand  sixty- 
six  and  33/100  ($3,066.33)  dollars  together  with  the  costs  of  the  pro- 
ceedings before  the  circuit  court  commissioner  and  one-half  of  the  taxable 
costs  of  this  court,  said  costs  being  in  the  sum  of  twenty-seven  ($27.00) 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  201 

dollars;  the  said  sum  in  all  aggregating  the  sum  of  three  thousand  ninety- 
three  and  33/100  ($3,093.33)  dollars  together  with  interest  at  6  per  cent 
from  the  19th  day  of  November,  1920,  and  give  notice  of  such  deposit 
to  the  plaintiff;  that  the  said  plaintiff  within  forty-five  (45)  days  of 
receipt  of  notice  of  such  deposit  shall  convey  the  premises  herein  de- 
scribed by  warranty  deed  and  furnish  an  abstract  of  title  as  provided  in 
such  land  contracts;  that  said  plaintiff  shall  obtain  and  deliver  to  de- 
fendant Meister  sufficient  quit-claim  deeds  and  discharges  of  any  right, 
title  and  interest  of  Charles  L.  Robertson,  Samuel  J.  Moore,  and  J.  M. 
Duncan  in  and  to  said  land  contracts  and  the  property  therein  described; 
and  if  said  plaintiff  cannot  procure  such  quit-claim  deeds  and  discharges, 
then  shall  it  within  such  aforesaid  period,  commence  such  legal  action  as 
may  be  necessary  to  divest  any  such  right,  title  or  interest,  and  prosecute 
the  same  with  all  due  diligence  until  the  cloud  upon  the  title  by  reason 
of  said  parties'  claims  be  removed. 

(d)   Said  land  contracts  are  described  and  identified  as  follows: 

1.  Contract  dated  October  19,  1915,  made  and  executed  by  and  between 
Moore  &  Veale  Real  Estate  Corporation,  as  first  parties,  and  Thomas  B. 
Townsend  as  second  part,  and  wherein  Thomas  B.  Townsend  and  Mayo 
M.  Townsend  assigned  their  interest  to  the  defendant  Meister  on  January 
29,  1916. 

2.  Contract  dated  October  19,  1915,  made  and  executed  by  and  between 
Moore  &  Veale  Real  Estate  Corporation,  as  first  party,  and  Thomas  B. 
Townsend  as  second  party,  and  wherein  Thomas  B.  Townsend  and  Mayo 
M.  Townsend  assigned  their  interest  to  the  defendant  Meister  on  January 
29,  1916. 

3.  Contract  dated  October  19,  1915,  made  and  executed  by  and  between 
Moore  &  Veale  Real  Estate  Corporation,  as  first  party,  and  Thomas  B. 
Townsend  as  second  party,  and  wherein  Thomas  B.  Townsend  and  Mayo 
M.  Townsend  assigned  their  interest  to  the  defendant  Meister  on  January 
29,  1916. 

3.  Contract  dated  October  19,  1915,  made  and  executed  by  and  between 
Moore  &  Veale  Real  Estate  Corporation,  as  first  party,  and  Thomas  B. 
Townsend  as  second  party,  and  wherein  Thomas  B.  Townsend  and  Mayo 
M.  Townsend  assigned  their  interest  to  the  defendant  Meister. 

4.  Contract  dated  October  19,  1915,  made  and  executed  by  and  between 
Moore  &  Veale  Real  Estate  Corporation,  as  first  party,  and  Thomas  B. 
Townsend  as  second  party,  and  wherein  Thomas  B.  Townsend  and  Mayo 
M.  Townsend  assigned  their  interest  to  the  defendant  Meister. 

5.  The  property  in  said  land  contracts  is  described  as  follows:  Lots 
15,  16,  17  and  18,  of  the  Moore  &  Veale's  Subdivision  of  the  south  part 
of  lot  2  of  the  Jonas  Goodell  Estate,  Subdivision  Private  Claim  226. 
Village  of  Ecorse,  Wayne  County,  Mich. 

Henry  A.  Mandell. 
A  true  copy.  Circuit  Judge. 

Walter  Buhl, 

Deputy  Clerk. 


202  THE  LAW  OF  LAND  CONTRACTS  [§  94 

(f)  Authorities  Cited  by  Plaintiff.  Brief  for  Plaintiff.— The  right  of 
plaintiff  to  bring  this  suit  to  quiet  title  is  clearly  established  in  Donnelly  v. 
Lyons,  173  Mich.  515.  To  give  plaintiff  a  decree  it  was  only  necessary 
to  recognize,  not  to  enforce,  a  forfeiture.  Equity  will  recognize  a  for- 
feiture when  it  is  simply  an  incident  of  a  past  transaction. 

Brown  v.  Brown,  196  Mich.  684. 

Eberts  v.  Fisher,  44  Mich.  551. 

Plaintiff's  contention  is,  that  under  such  contracts  as  are  herein  in- 
volved, due  notice  of  forfeiture  followed  by  valid  summary  proceedings, 
where  no  appeal  or  suit  in  equity  is  had,  and  the  amount  found  due  is  not 
paid  within  the  30  days  allowed  by  statute,  effectually  terminates  all 
right  of  the  vendee  in  or  to  the  premises,  and  cuts  off  all  right  to  a 
re-instatement  or  specific  performance. 

Compiled  Laws  of  1915,  13240-57. 

Public  Acts  of  1917,  No.  243. 

Notice  of  forfeiture  in  such  cases  terminates  the  contract  relations  of 
the  parties.  LaFrance  v.  Griffin,  160  Mich.  240.  The  defendant  must 
tender  the  amount  due  within  the  time  allowed  by  the  statute.  Smith  v. 
Nelson,  165  Mich.  438.  In  case  of  vacant  property  it  has  been  held  that 
notice  of  forfeiture  alone  is  sufficient.  Donnelly  v.  Lyons,  173  Mich.  515. 
Oakman  v.  Esper,  206  Mich.  316.  Where  the  notice  of  forfeiture  is  in- 
sufficient, this  defense  must  be  set  up  in  the  summary  proceedings. 
Mills  v.  Drueke,  172  Mich.  394.  The  case  of  Lozon  v.  McKay,  203  Mich. 
366,  was  cited  by  the  trial  court  and  relied  upon,  but  in  that  case  no 
summary  proceedings  were  had,  and  the  vendee  commenced  a  suit  for 
specific  performance  a  short  time  after  notice  of  forfeiture.  The  amount 
of  the  vendee's  equity  is  not  material  and  the  summary  statute  makes 
no  exception,  and  there  is  no  authority  for  the  statement  in  Davis  on 
Circuit  Court  Commissioners  that  where  the  equity  is  large,  foreclosure 
should  be  had  in  equity,  and  the  amendment  of  1917  clearly  settles  the 
question,  providing  for  the  recording  of  writs  of  restitution,  adding  the 
significant  words  that  when  so  recorded  "shall  be  notice  to  all  persons 
of  the  termination  of  the  rights  of  the  vendee  in  and  to  such  lands." 
Public  Acts  of  1917,  Act  243. 

After  a  forfeiture  has  been  declared  on  a  land  contract  for  the  default 
of  the  vendee,  especially  where  time  is  of  the  essence  of  the  contract, 
and  it  is  expressly  agreed  in  case  of  default  the  vendor  shall  retain  the 
moneys  paid  in,  the  vendee  is  not  entitled  either  in  law  or  equity  to  a 
refund. 

39  Cyc,  page  2035,  and  cases  cited;  27  R.  C.  L.,  paragraph  378,  and  cases 
cited:    35  L.  R.  A.  532  and  cases  cited;  L.  R.  A.,  1918,  B.  540  general  review 
of  the  authorities,  50  Amer.  Dec.  680. 
Satterlee  v.  Cronkhite,  114  Mich.  634. 

In  Godspeed  v.  Dean,  12  Mich.  352,  it  was  held  that  when  the  vendor 
has  declared  a  forfeiture  he  cannot  afterwards  recover  the  purchase  price. 
It  follows  that  if  the  vendor's  right  under  the  contract  is  cut  off,  so  is  the 
vendee's. 


R  94]  REMEDYING  DEFECTS  IN  THE  TITLE  203 

Lawrence  v.  Miller,  86  N.  Y.  131,  gives  the  reason  for  this  rule  in  such 
apt  language  that  counsel  is  constrained  to  quote  the  same: 

"It  is  declared  in  this  court  in  Havens  v.  Paterson,  43  N.  Y.  218  (equity 
case),  that  it  is  never  permitted  in  law  or  equity  for  one  to  recover  back 
money  paid  on  an  executory  contract  that  he  has  refused  or  neglected  to 
perform.  The  plaintiff  in  the  action  before  us  sues  for  the  whole  amount 
of  the  money  paid  by  the  vendee.  The  defendant  came  by  it  rightfully, 
in  pursuance  of  a  contract  lawfully  made,  by  competent  parties.  He  has 
made  no  breach  of  contract.  He  has  failed  in  no  duty  to  the  vendee. 
Wherefore,  then,  should  he  give  up  that  which  was  rightfully  his  own' 
When  and  whereby  did  it  cease  to  become  his  and  to  be  due  to  the  vendee? 
If  the  contract  had  been  kept  by  both  parties,  the  money  paid  would  be 
his  by  right.  The  contract  would  have  been  kept,  but  for  a  breach  by  the 
vendee.  To  allow  a  recovery  of  the  money  would  be  to  sustain  an  action 
by  a  party  on  his  own  breach  of  contract,  which  the  law  does  not  allow. 
When  we  declare  that  the  vendor  had  done  all  that  the  law  asked  of  him 
we  also  declare  the  vendee  has  not  done  his  part.  And  when  to  maintain 
an  action  would  be  to  declare  that  a  party  may  violate  his  agreement, 
and  make  an  infraction  of  it  a  cause  of  action.  (See  Ketchum  v.  Evert- 
son,  13  Johns,  359.)  Nor  can  the  specious  view  be  taken  that  defendant 
is  entitled  to  no  more  than  he  was  actually  damaged.  That  was  sub- 
stantially the  question  in  Stevens  v.  Bland,  4  Wend.  604,  and  the  answer 
was  against  it." 

(g)  Authorities  Cited  by  Defendants.  Brief  for  Defendants.— The  right 
of  a  court  of  equity  to  grant  the  relief  prayed  for  in  defendants' 
cross-bill  is  well  settled.  Gregar  v.  Olde,  209  Mich.  50.  The  contention 
of  plaintiff  that  neither  in  the  above  case  nor  in  Davis  on  Circuit  Court 
Commissioner  is  any  authority  given  for  the  statement  is  true,  but  the 
reason  is  given  quite  clearly  in  the  following  paragraph  from  the  Gregar 
case: 

"That  equity  courts  have  jurisdiction  to  relieve  from  forfeitures,  direct 
accounting  and  grant  specific  performance  where  equitable  grounds  to 
those  ends  are  properly  charged,  and  satisfactorily  proven,  is  textbook  law, 
and  not  open  to  question." 

In  the  case  of  Lozon  v.  McKay,  203  Mich.  364,  the  court  treated  a  bill 
for  specific  performance  as  being  in  effect  a  bill  seeking  relief  from  for- 
feiture, and  granted  relief  although  the  vendee  had  paid  only  one  install- 
ment of  interest,  had  paid  no  taxes  for  several  years,  and  had  never 
tendered  or  offered  to  pay  the  sums  called  for  by  the  contract,  and 
although,  as  the  court  states:  "It  is  apparently  as  uncertain  now  as  it 
has  been  for  years  whether  the  plaintiff  can  pay  what  is  due  to  the 
defendant.  It  ought  to  have  been  tendered  before  suit  was  begun,  in 
which  case  it  is  likely  that  no  suit  would  have  been  necessary." 

The  power  of  the  court  to  remit  to  plaintiff  the  amount  which  he  paid 
upon  his  contract  falls  under  the  head  of  the  power  to  relieve  from 
forfeiture,  since,  under  the  equities  presented  in  any  particular  case,  It 


204  THE  LAW  0F  LAND  CONTRACTS  [§  94 

might  be  unconscionable  to  permit  the  seller  to  recover  back  the  property 
sold,  and  retain,  in  addition  to  it,  substantial  payments  made  upon  it  by 
the  vendee. 

This  falls  under  equity  jurisdiction,  and,  as  stated  in  Gregar  v.  Olde, 
supra,  "is  textbook  law,  and  not  open  to  question." 

Such  relief  is  not  without  precedent  in  this  state.  In  the  case  of  Biddle 
v.  Biddle,  202  Mich.  160,  the  court  decreed  a  return  to  the  vendee  of  the 
sum  of  fifteen  thousand  ($15,000)  dollars  which  he  had  paid  to  the 
vendor.  The  contract  in  question  was  virtually  the  same  as  the  one  in 
the  case  at  bar.  The  court  was  of  the  opinion  that  under  all  the  facts 
in  the  case,  to  permit  the  vendor  to  retain  the  payment  would  be  in 
effect  to  enforce  a  penalty  against  the  vendee. 

MOORE  v.  PROVOST,  et  al.,  205  Mich.  687— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  of  Defendants  Herman  Meier,  et  al. 

(d)  Answer  of  Defendants  T.  J.  Provost,  et  al. 

(e)  Answer  of  Defendants  W.  Miles,  et  al. 

(f)  Answer  of  Defendants  F.  E.  Tower,  et  al. 

(g)  Decree. 

(h)  Authorities  Cited  by  Plaintiff.    Brief  for  Plaintiff. 

(i)  Authorities  Cited  by  Defendants.     Brief  for  Defendants. 

MOORE  v.  PROVOST,  et  al.,  205  Mich.  687. 

(a)  Brief  Statement  of  Fact. 

A  bill  of  complaint  was  filed  to  quiet  the  title  to  certain  land  and  water 
rights  and  rights  of  flowage.  A  decree  was  entered  quieting  the  title 
of  plaintiff  and  awarding  plaintiff  the  right  to  maintain  certain  head  of 
water.    The  plaintiff  appealed  and  the  decree  was  modified. 

(b)  Bill  of  Complaint. 

State  of  Michigan,  in  the  Circuit  Court  for  the  County  of  Shiawassee, 
in  Chancery. 

J.  MARTIN  MOORE, 

Plaintiff, 
v. 
T.  J.  PROVOST,  HERMAN  MEIER,  et  al. 

Defendants. 

To  the  Circuit  Court  for  the  County  of  Shiawassee,  in  Chancery: 
Your  orator,  J.  Martin  Moore,  of  the  Village  of  Byron,  in  said  county  and 
state,  respectfully  represents  unto  this  Honorable  Court: 

1.  That  upon,  to-wit,  the  21st  day  of  June,  1836,  Samuel  W.  Dexter  was 
the  owner  of  the  following  described  real  estate,  situated  in  the  Township 
of  Burns  and  in  the  Village  of  Byron,  Shiawassee  County,  Michigan,  and 
more  particularly  described  as  follows,  to-wit: 

(Here  property  was  correctly  described.) 

2.  That  about  this  time  a  grist  mill  was  located  upon  said  premises  and 


§  94]  REMEDYING   DEFECTS   IN  THE  TITLE  205 

a  portion  of  said  land  was  used  in  the  regular  business  of  conducting  said 
mill,  and  the  remaining  portion  thereof  was  used  for  the  purpose  of 
water  power  rights;  the  maintenance  of  a  dam  across  the  Shiawassee 
River  and  the  consequent  flowage  of  said  land  for  the  purpose  of  operating 
said  grist  mill;  that  said  property  from  the  date  of  the  construction  of 
said  dam  and  the  erection  of  said  mill  has  been  continuously  operated 
for  mill  purposes,  as  aforesaid,  down  to  the  present  time.  That  upon 
the  date  last  mentioned  the  said  Samuel  W.  Dexter  and  wife  executed 
their  warranty  deed  of  conveyance  of  said  premises  unto  T.  J.  Provost, 
Sydney  S.  Derby,  Calvin  Smith  and  Pierpont  L.  Smith,  said  deed  of  con- 
veyance being  recorded  upon  April  8,  1837,  in  Liber  C  of  Deeds,  upon 
page  150;  that  thereafter,  and  by  subsequent  conveyance  the  said  T.  J. 
Provost,  Sydney  S.  Derby,  Calvin  Smith  and  Pierpont  L.  Smith,  together 
with  their  wives,  conveyed  said  premises  to  Sullivan  R.  Kelsey,  but  by 
an  error  of  the  scriviner  who  drew  said  deeds  of  conveyance,  leaving  a 
considerable  doubt  as  to  whether  or  not  the  entire  premises  above 
described  or  only  an  undivided  one-fifth  interest  therein  was  conveyed  to 
the  said  Sullivan  R.  Kelsey,  although  such  was  the  apparent  understand- 
ing of  the  parties  to  said  conveyance.  The  last  deed  of  conveyance  to  the 
said  Sullivan  R.  Kelsey  was  made  upon,  to-wit,  the  10th  day  of  December, 
1842,  and  was  a  warranty  deed  executed  by  F.  G.  Provost  and  Sydney  S 
Derby  together,  with  their  wives,  which  was  recorded  upon  the  19th  day 
of  December,  1842,  in  Liber  F  of  Deeds,  upon  page  360.  Various  deeds  of 
conveyance  including  the  water  power  rights  and  the  right  of  flowage  of 
the  lands  above  described  in  connection  with  the  operation  of  said  mill 
carried  the  title  to  said  premises  to  Henry  H.  Rosenkrans  and  Allen 
Sheldon,  who  upon  the  16th  day  of  January,  1882,  were  the  owners  in 
undivided  equal  shares  of  the  above  described  premises.  However,  a 
receiver's  deed,  bearing  date  January  15,  1879,  executed  unto  Flavius  J. 
Lake,  Sydney  Cushing,  Franklin  B.  Daniels  and  Johnathan  E.  Herrick, 
which  said  deed  was  void  and  without  effect,  casts  a  cloud  upon  the 
title  unto  said  land  and  the  water  power  rights  in  connection  therewith 
in  the  said  Allen  Sheldon  and  Henry  Rosenkrans,  said  deed  being  recorded 
on  the  18th  day  of  February,  1881,  recorded  in  Liber  53  of  Deeds,  page  197. 

3.  Thereafter  and  upon,  to-wit,  the  16th  day  of  January,  1882,  the  said 
Allen  Sheldon  together  with  his  wife  conveyed  his  undivided  one-half 
interest  in  the  premises  above  described  unto  the  said  Henry  H.  Rosen- 
krans, said  deed  being  recorded  upon  the  28th  day  of  January,  iS82,  in 
Liber  38  of  Deeds,  upon  page  283.  Thereafter  and  upon,  to-wit,  the  14th 
day  of  December,  1892,  the  said  Henry  H.  Rosenkrans,  together  with  his 
wife,  he  being  then  the  owner  of  said  premises  in  fee  simple,  conveyed 
the  premises  above  described  by  his  warranty  deed  of  conveyance  to 
William  A.  and  Harriett  R.  Showerman,  said  deed  being  recorded  on  the 
17th  day  of  December,  1892,  in  Liber  73  of  Deeds,  page  549.  The  descrip- 
tion in  said  deed  of  conveyance  includes  the  premises  above  described 
and  is  as  follows: 

The  Byron  Mill  Property,  so-called.     Beginning  at  a  point  on  the  west 


206  THE  LAW  OF  LAND  CONTRACTS  [§  94 

side  line  of  Saginaw  Street  in  the  Village  of  Byron,  said  point  lying 
seventy-five  links  southerly  from  the  southeast  corner  of  lot  No.  four, 
in  block  No.  twenty-two,  of  said  village,  and  running  from  said  point 
southerly  on  said  side  line  of  street  one  chain  and  twenty-five  links  to  the 
southern  extremity  of  said  line,  and  to  the  south  line  of  the  village, 
thence  easterly  on  said  south  line  of  the  village  seventy-five  links  to  the 
intersection  of  the  village  line  with  the  center  line  of  the  road,  known  as 
the  Pontiac  and  Grand  River  Road,  thence  south  twenty-one  degrees  and 
forty-five  links,  east  on  the  center  line  of  the  Pontiac  and  Grand  River 
Road,  five  chains  and  thirty-three  links  to  the  northeast  corner  of  a 
piece  of  land  deeded  by  Bowman  W.  Dennis  and  Sullivan  R.  Kelsey  to 
Edward  Buckingham,  thence  south  eighty-nine  and  one-fourth  degrees 
west  on  the  north  line  of  said  Buckingham  land,  six  chains  and  sixty-two 
links  to  the  right  and  east  bank  of  the  Shiawassee  River,  thence  northerly 
down  stream  on  the  river  bank  six  chains  and  twenty  links  to  a  point 
seventy-five  links  southerly  from  the  southwest  corner  of  the  above 
mentioned  lot  number  four,  block  number  twenty-two.  Thence  easterly 
and  parallel  with  the  south  line  of  said  lot  three  chains  and  sixty  links 
to  the  place  of  beginning,  supposed  to  contain  three  and  sixty-four  hun- 
dredths acres  of  land,  more  or  less. 

Also  the  following  described  land,  being  the  north  part  of  the  lot  known 
as  the  Buckingham  lot,  beginning  on  the  center  line  of  the  Pontiac  and 
Grand  River  Road  at  a  point  five  chains  and  thirty-three  links  south- 
easterly from  said  intersection  of  said  center  line  with  the  south  line  of 
the  Village  of  Byron  and  running  south  twenty-one  and  three-fourths 
degrees,  east  on  the  center  line  of  said  road  one  chain  and  twenty-three 
links,  thence  south  eighty-nine  and  one-half  degrees,  west  six"  chains  and 
ninety-six  links  to  the  right  or  east  bank  of  the  Shiawassee  River,  thence 
north  four  degrees,  west  on  said  right  bank  of  the  river  one  chain  and 
eleven  and  three-fourths  links,  thence  east  eighty-nine  and  one-fourth 
degrees,  east  six  chains  and  sixty-two  links  to  the  place  of  beginning, 
supposed  to  contain  seventy-nine  hundredths  of  an  acre  of  land.  All  of 
the  above  described  land  on  the  northeast  fractional  part  of  the  northeast 
fractional  quarter  of  section  twenty-three  and  a  part  of  the  north  part  of 
the  west  half  of  the  northwest  quarter  of  section  twenty-four  of  town 
five  north,  of  range  four  east,  in  the  County  of  Shiawassee  and  State  of 
Michigan. 

Also,  all  of  lot  B,  in  I.  L.  Robert's  Addition  to  the  Village  of  Byron, 
County  of  Shiawassee  and  State  of  Michigan. 

4.  Prior  to  this  deed  last  above  mentioned  the  water  power  rights, 
which  had  been  reserved  in  Sullivan  R.  Kelsey  and  Bowman  W.  Dennis, 
were  released  to  the  grantors  in  the  regular  chain  of  title  of  the  said 
Henry  H.  Rosenkrans,  and  were  conveyed  in  the  regular  course  of  con- 
veyance to  Allen  Sheldon,  who  upon  the  27th  day  of  November,  1900, 
became  the  absolute  owner  of  said  premises,  including  all  water  power 
rights  connected  with  said  mill  by  a  warranty  deed  of  conveyance 
executed  by  Edward  C.  Tuckey  and  wife  to  said  Allen  Sheldon,  said  deed 


94] 


REMEDYING   DEFECTS  IN  THE  TITLE  207 


being  recorded  upon  the  14th  day  of  December,  1900,  in  Liber  96  of  Deeds, 
upon  page  38.  The  said  Sullivan  R.  Kelsey  and  wife  and  Bowman  W. 
Dennis  conveyed  the  said  reserved  water  power  rights  to  the  preceding 
grantors  of  the  said  Allen  Sheldon  in  the  regular  chain  of  title  by  deeds, 
respectively  recorded  June  28,  1858,  in  Volume  V  of  Deeds,  upon  page 
214,  and  Volume  V  of  Deeds,  upon  page  217,  in  the  office  of  the  register 
of  deeds,  in  said  County  of  Shiawassee.  The  deed  executed  by  the  said 
Sullivan  R.  Kelsey,  which  is  identical  so  far  as  the  description  is  con- 
cerned with  the  deed  executed  by  the  said  Bowman  W.  Dennis,  contains 
the  following  description: 

Beginning  at  the  southern  extremity  of  the  center  line  of  Saginaw 
Street  in  the  Village  of  Byron,  thence  running  south  twenty-one  and  three- 
fourths  degrees,  east  along  the  center  line  of  the  highway,  known  as  the 
Pontiac  and  Grand  River  Road,  five  chains  and  thirty-three  links  to  the 
northeast  corner  of  a  certain  lot  of  land  deeded  to  E.  L.  Buckingham  and 
Bowman  W.  Dennis  and  Sullivan  R.  Kelsey,  thence  south  eighty-nine  and 
one-fourth  degrees  west  along  the  north  line  of  said  Buckingham's  land  six 
chains  and  sixty-two  links  to  the  east  bank  of  the  Shiawassee  River; 
thence  north  two  degrees,  west  along  the  easterly  bank  of  said  river,  two 
chains  and  fifty-two  links  to  a  stake;  thence  north  four  and  one-half  de- 
grees east  along  the  easterly  bank  of  said  river,  four  chains  and  thirty-nine 
links  to  the  south  line  of  lot  number  four  on  block  number  twenty-two  in 
the  Village  of  Byron  aforesaid;  thence  north  eighty-eight  and  one-fourth 
degrees  east  along  the  south  line  of  said  village  lot  number  four,  four 
chains  and  thirty-five  links  to  the  center  line  of  Saginaw  Street,  in  said 
Village  of  Byron;  thence  south  one  and  three-fourths  degrees,  east  two 
chains  to  the  place  of  beginning;  also  one  undivided  half  of  one  other  piece 
of  land  described  as  follows: 

Beginning  at  a  point  lying  on  the  center  line  of  the  Pontiac  and  Grand 
River  Road  aforesaid,  five  chains  and  thirty-five  links  southeasterly  of 
the  southern  extremity  of  the  center  line  of  Saginaw  Street,  in  the  Vil- 
lage of  Byron  aforesaid,  thence  running  north  eighty-nine  and  one-half 
degrees,  east  six  chains  and  thirty  links  to  a  stake  standing  near  the 
head  of  the  mill  race;  thence  south  twenty-seven  and  one-half  degrees, 
east  eleven  chains  and  eighty-five  links;  thence  south  fifty-six  and  one- 
half  degrees,  west  five  chains  eighty-eight  links  to  the  highway;  thence 
north  thirty-two  and  eighty-eight  links  to  the  highway;  thence  north 
thirty-two  and  one-half  degrees,  west  along  the  highway  seven  chains 
and  forty  and  three  links;  thence  twenty-one  and  three-fourths  degrees, 
west  along  the  center  line  of  the  highway  eight  chains  and  one  link  to 
the  place  of  beginning. 

Also  one-half  of  other  piece  of  land  described  as  follows: 

Beginning  at  a  point  lying  on  the  northeasterly  side  line  of  highway 
one  chain  and  eighty  links  southerly  from  the  intersection  of  said  north- 
easterly side  line  of  highway  with  the  south  line  of  the  Village  of  Byron 
aforesaid;  thence  running  north  eighty-eight  and  one-fourth  degrees, 
east  three  chains  and  five  links  to  the  northeast  corner  of  a  lot  of  land, 


208  THE  LAW  0P  LAND  CONTRACTS  [§  94 

formerly  deeded  by  Dennis  and  Kelsey  to  O.  Phelps,  on  the  29th  day  of 
March,  A.  D.  1848;  thence  north  to  the  south  line  of  a  lot  deeded  by  said 
Dennis  and  Kelsey  to  M.  W.  Kelsey;  thence  westerly  along  the  south 
line  of  said  last  mentioned  lot  to  the  northeasterly  line  of  the  high- 
way; thence  southerly  along  the  northeasterly  line  of  highway  to  the 
place  of  beginning. 
Also  one-half  of  the  other  piece  of  land  described  as  follows: 
Beginning  at  a  point  lying  on  the  northeasterly  side  line  of  the  Pontiac 
and  Grand  River  Road,  three  chains  and  thirty-three  lengths  southerly 
of  the  intersections  of  said  line  of  road  with  the  south  line  of  the  Village 
of  Byron  aforesaid,  running  thence  north  eighty-eight  degrees  and  fifteen 
seconds,  east,  two  chains  and  ninety-one  links  to  the  northeast  corner 
of  a  certain  lot  formerly  deeded  by  Dennis  and  Kelsey  to  Ziza  Goff,  on 
the  29th  day  of  March,  A.  D.  1848;  thence  running  northeasterly  to  the 
southeast  corner  of  the  Phelps  lot,  heretofore  mentioned;  thence  westerly 
along  the  south  line  of  said  Phelps  lot  three  chains  and  eleven  links  to 
the  northeasterly  side  line  of  highway;  thence  southerly  along  the  easterly 
line  of  said  highway  to  the  place  of  beginning. 

5.  Your  orator  further  represents  that  thereafter  the  said  Allen  Sheldon 
departed  this  life  testate.  By  the  terms  of  his  will  recorded  upon  the  21st 
day  of  August,  1905,  in  miscellaneous  records  of  the  register  of  deeds 
office,  of  Shiawassee  County,  in  Liber  F,  upon  page  559,  the  said  Allen 
Sheldon  devised  all  of  the  lands  above  described,  in  fact,  all  of  his  real 
estate  in  Michigan,  to  Henry  D.  Sheldon.  At  that  time  of  his  death,  the 
said  Allen  Sheldon  was  the  owner  of  the  premises  first  above  described, 
together  with  all  water  rights  in  connection  with  the  operation  of  the 
mill  upon  said  premises,  and  by  the  said  devise  under  the  terms  of  the 
said  will,  the  said  Henry  B.  Sheldon  became  the  owner  of  all  the  said 
premises  and  power  rights  upon,  to-wit,  the  1st  day  of  May,  1912.  The 
said  Henry  B.  Sheldon,  together  with  his  wife  conveyed  the  premises 
first  above  described  unto  your  orator  by  a  warranty  deed  of  that  date, 
said  deed  being  recorded  upon  the  14th  day  of  May,  1912,  in  the  office 
of  the  register  of  deeds  of  Shiawassee  County,  in  Liber  96  of  Deeds, 
upon  page  190,  and  also  upon,  to-wit,  the  8th  day  of  May,  1912,  by  his 
quit-claim  deed  of  that  date  conveyed  unto  your  orator  the  water  power 
rights  in  connection  with  said  premises,  said  quit-claim  deed  being  re- 
corded upon  the  13th  day  of  May,  1912,  in  the  office  of  the  register  of 
deeds,  of  Shiawassee  County,  in  Liber  132  of  Deeds,  upon  page  616. 

6.  Your  orator  further  represents  that  one  Samuel  W.  Dexter,  to  your 
orator  unknown,  claimed  at  one  time  certain  rights  in  said  premises  first 
above  described,  by  reasons  of  the  sale  of  said  land  for  taxes  for  the 
tax  of  1832,  said  Samuel  W.  Dexter  acquiring  whatever  rights  he  had  in 
said  premises  by  reason  of  a  quit-claim  deed  bearing  date  June  8,  1840, 
and  recorded  upon  the  19th  day  of  June,  1840,  in  Liber  E,  of  Deeds,  upon 
page  117.  That  said  conveyance  to  the  said  Samuel  W.  Dexter  was  with- 
out effect  for  the  reason  that  said  taxes  of  1832  were  no  legal  lien  upon 
said  premises,  and  that  said  tax  deed  was  absolutely  void,  and  further 


§  94]  REMEDYING   DEFECTS  IN  THE  TITLE  209 

that  the  grantees  by  virtue  of  said  tax  deed  have  lost  whatever  rights 
they  may  have  acquired  in  said  premises  by  the  adverse  possession  of 
the  grantors  of  your  orator  in  the  regular  chain  of  title. 

7.  Your  orator  further  represents  that  certain  parties  who  are  now 
owners  of  land  adjacent  to  the  premises  first  above  described  are  claim- 
ing certain  rights  in  and  to  certain  portions  of  the  premises  first  above 
described,  now  belonging  to  your  orator;  that  the  names  of  said  parties 
are  as  follows:  Herman  Meier  and  Carrie  Meier,  his  wife,  Ernest  Kel- 
sey  and  Mary  Kelsey,  Emma  Spangenberger,  Frank  Alden  and  Ada  Alden, 
Perry  Hadsell,  Helen  Hadsell,  Township  of  Burns,  Shiawassee  County, 
Michigan;  Fred  S.  Ruggles  and  Effie  Ruggles,  George  Downing  and  Emma 
Downing,  William  Betterly  and  Cora  Betterly,  Frank  E.  Tower  and  Mamie 
Tower,  John  N.  Ripley  and  Vinnie  Ripley,  Edgar  Caulkins  and  Kiva  Caul- 
kins,  Robert  Coats,  Thomas  McGee,  Elsie  McGee,  Lucy  Kirkendol,  Henry 
Faul,  Charles  Fritz  and  Henrietta  Fritz,  and  William  Harper  and  Bertha 
Harper  and  Frances  Campbell.  That  these  parties  and  none  of  them  have 
any  right  of  any  description  in  the  premises  above  described,  but  their 
assertion  of  right  and  interest  in  the  premises  first  above  described  is 
an  open  assertion  against  the  title  of  your  orator  in  said  premises  and 
constitutes  a  cloud  upon  the  right  and  interest  of  your  orator  therein, 
and  should  be  quieted  by  a  decree  of  this  court. 

8.  Your  orator  further  represents  that  attached  hereto  is  a  map  and 
diagram  of  the  premises  involved,  said  map,  being  marked  Exhibit  A  and 
made  a  part  of  this  bill  of  complaint. 

9.  Your  orator  further  represents  for  a  period  of  fifty  years  preceding 
this  date  the  grantors  of  your  orator  have  had  a  right-of-way  and  ease- 
ment along  the  southerly  side  of  land  owned  by  Charles  Fritz  and  Henri- 
etta Fritz  and  extending  around  the  easterly  and  northeasterly  side  of 
said  land  to  the  dam  above  referred  to,  used  in  connection  with  the 
operation  of  said  mill;  that  said  right-of-way  is  10  feet  in  width  and 
extends  from  the  easterly  side  of  the  Pontiac  and  Grand  River  Road,  so- 
called,  easterly  around  said  land  to  the  dam  aforesaid,  a  distance  of 
eighteen  rods  from  the  center  of  said  road.  That  this  right-of-way  and 
easement  was  and  is  a  necessary  appurtenance  to  said  dam  and  is  the 
only  method  of  ingress  and  egress  to  said  dam  for  keeping  same  in  repair. 
That  said  easement  and  right-of-way  as  appurtenant  to  the  land  described 
is  paragraph  one  of  this  bill  of  complaint  has  been  conveyed  to  the  suc- 
cessive grantors  of  your  orator  down  to  your  orator,  and  that  your  orator 
is  still  the  owner  of  said  easement.  However,  said  Charles  Fritz  and 
Henrietta  Frit/  are  disputing  the  right  of  your  orator  to  use  said  ease- 
ment and  right-of-way,  insisting  that  your  orator  has  no  title  in  and  to 
said   property. 

10.  Your  orator  further  represents  that  the  mill  pond,  so-called,  which 
covers  a  large  portion  of  the  land  described  in  praagraph  one.  and  to 
gether  with  the  mill  race  covers  all  of  the  second  description  of  land 
contained  in  paragraph  one  of  this  bill,  has  very  well  defined  banks  and 
has  always  been  known  and  used  as  the  mill  pond  furnishing  the  water 


210  THE  LAW  OF  LAND  CONTRACTS  [§  94 

for  the  operation  of  said  mill;  that  various  deeds  of  conveyance  in  the 
regular  chain  of  title  describes  the  water  power  appurtenant  to  said  mill, 
and  the  volume  of  water  which  may  be  contained  in  said  mill  pond  as  a 
sufficient  head  of  water  to  operate  said  mill  with  four  run  of  stone.  That 
the  second  description  of  land  in  paragraph  one  of  this  bill  is  according 
to  a  survey  of  said  mill  pond  around  these  well  defined  banks,  which  have 
been  the  boundaries  of  said  mill  pond  for  fifty  years  and  upwards. 

11.  Your  orator  further  represents  that  on  or  about,  to-wit,  May  15, 
1876,  as  appears  by  the  records  in  the  office  of  the  register  of  deeds  of 
Shiawassee  County,  one  Charles  H.  Lemon  and  wife,  executed  a  mortgage 
to  one  Matthias  L.  Stewart  in  the  sum  of  $1,400.00,  said  mortgage  being 
upon,  to-wit,  the  26th  day  of  May,  1876,  recorded  in  the  office  of  the 
register  of  deeds  of  Shiawassee  County,  in  volume  5  of  mortgages,  upon 
page  487.  That  said  mortgage  was  a  junior  mortgage  subject  to  a 
previously  recorded  mortgage  given  by  Charles  H.  Lemon  and  wife 
to  Allen  Sheldon,  bearing  date  May  13,  1876,  and  recorded  in  the 
office  of  the  register  of  deeds  of  Shiawassee  County  upon  May  17, 
1876,  in  volume  5  of  mortgages,  upon  page  473.  That  said  last  men- 
tioned mortgage  was  upon  the  12th  day  of  December,  1881,  foreclosed, 
and  a  Circuit  Court  Commissioner's  deed  given  unto  the  said  Allen 
Sheldon,  which  was  recorded  in  the  office  of  the  register  of  deeds 
of  Shiawassee  County,  upon  the  24th  day  of  December,  1881,  that  thereby 
the  mortgage  above  referred  to  running  to  the  said  Matthias  L.  Stewart 
was  cut  off  and  the  said  Allen  Sheldon  took  a  perfect  title  to  the  real 
estate  described  in  paragraph  one  of  this  bill,  relieved  from  the  Tien  of 
said  Stewart  mortgage.  That  likewise  said  mortgage  is  outlawed  and 
the  statute  of  limitations  has  run  against  it  for  the  reason  that  no  pay- 
ment has  been  made  upon  said  mortgage  in  the  past  fifteen  years,  and 
that  no  recognition  of  said  mortgage  has  been  had  or  given  to  it  by  any 
person  or  persons  interested,  and  likewise  the  said  mortgage  has  been 
fully  paid  and  satisfied,  and  should  for  the  foregoing  reasons  be  discharged 
from  record. 

Your  orator  further  represents  that  upon,  to-wit,  the  28th  day  of  April, 
1849,  a  mortgage  was  executed  by  E.  L.  Buckingham  and  others,  to  Hiram 
W.  Hovey,  and  said  mortgage  was  recorded,  upon,  to-wit,  the  5th  day  of 
June,  1849,  in  Liber  B  of  Mortgages,  upon  page  343,  said  mortgage  being 
in  the  sum  of  $300,  and  covering  the  portion  of  land  described  in  paragraph 
one  of  this  bill.  That  likewise  a  certain  mortgage  was  executed  by 
Edward  L.  Burlingame  to  Dennis  and  Kelsey  upon,  to-wit,  the  20th  day 
of  January,  1849,  and  recorded  in  Liber  B  of  Mortgages,  upon  page  397, 
said  mortgage  being  for  the  sum  of  $353.00,  and  covering  a  portion  of  the 
premises  described  in  paragraph  one  of  this  bill.  That  said  mortgages 
have  both  been  fully  paid  and  satisfied  and  the  statute  of  limitations 
has  run  against  them  and  both  should  be  declared  by  the  decree  of  this 
court  to  be  paid  and  satisfied  and  discharged. 

12.  Your  orator  further  represents  that  T.  J.  Provost,  Sydney  S.  Derby, 
Calvin  Smith,  Flavius  J.  Lake,  Sydney  Cushing,  Frank  B.  Daniels,  John- 


§  94]  REMEDYING   DEFECTS  IN  THE  TITLE  211 

athan  E.  Herrick,  Samuel  W.  Dexter,  Matthias  L.  Stewart,  Hiram  W. 
Hovey,  Bowman  W.  Dennis,  Sullivan  R.  Kelsey,  Dennis  &  Kelsey,  Herman 
Meier  and  Carrie  Meier,  his  wife,  Ernest  Kelsey  and  Mary  Kelsey,  Emma 
Spangenberger,  William  Miles,  Frank  Alden  and  Ada  Alden,  Perry  Had- 
sell,  Township  of  Burns,  Shiawassee  County,  Michigan;  Fred  S.  Ruggles 
and  Effle  Ruggles,  George  Downing  and  Emma  Downing,  William  Betterly 
and  Cora  Betterly,  Frank  E.  Tower  and  Mamie  Tower,  John  N.  Ripley 
and  Vlnnie  Ripley,  Edgar  Caulkins  and  Kiva  Caulkins,  Robert  Coats, 
Elsie  McGee,  Lucy  Kirkendol,  Henry  Faul,  Charles  Fritz  and  Henrietta 
Fritz,  and  William  Harper  and  Bertha  Harper  and  Frances  Campbell, 
persons  claiming  to  be  interested  in  the  premises  described  in  paragraph 
one  of  this  bill  of  complaint,  a  portion  of  whose  names  appear  in  the 
office  of  the  register  of  deeds  in  Shiawassee  County,  Michigan,  as  having 
at  various  times  previous  to  this  date  claimed  certain  rights,  title  or 
Interest  or  estate  in  the  subject  matter  of  this  suit,  or  In  certain  por- 
tions thereof,  and  claiming  liens  or  charges  thereof  without  having  con- 
veyed or  released  the  same;  that  said  persons  under  the  provisions  or 
legal  effect  of  various  instruments  of  record,  claim  or  might  be  entitled  to 
claim  certain  benefits  thereunder.  Your  orator  further  represents  it  is 
not  known  whether  T.  J.  Provost,  Sydney  S.  Derby,  Calvin  Smith,  Fla- 
vius  J.  Lake,  Sydney  Cushing,  Frank  B.  Daniels,  Johnathan  E.  Herrick, 
Samuel  W.  Dexter,  Matthias  L.  Stewart,  Hiram  W.  Hovey,  Bowman  W. 
Dennis,  Sullivan  R.  Kelsey,  Dennis  &  Kelsey,  are  living  or  dead,  or  where 
they  may  reside  if  living  or  whether  their  titles,  interest,  claims,  liens  or 
possible  rights  have  been  by  them  assigned  to  any  person  or  persons,  or 
if  dead  whether  they  have  personal  representatives  or  heirs  living,  or 
where  they  or  any  of  them  may  reside,  or  whether  any  of  their  titles,  In- 
terest, claims,  liens  or  possible  rights  have  been  disposed  of  by  will,  and 
therefore  such  parties  are  hereby  designated  by  their  respective  names, 
and  their  unknown  heirs,  devisees,  legatees  and  assigns,  as  provided  for  In 
section  20  of  chapter  12  of  Act  No.  314  of  the  Public  Acts  of  1915,  of  the 
State  of  Michigan. 

13.  Your  orator  further  represents  that  there  are  various  uncertain 
ties  and  ambiguities  in  various  conveyances  of  the  premises  described 
in  paragraph  one  of  this  bill,  and  various  conveyances  so  executed 
as  to  make  their  validity  uncertain,  and  that  there  is  a  class  of  per- 
sons who  by  reason  of  said  uncertainties,  provisions,  limitations  and 
restrictions  might  be  entitled  in  certain  contingencies  to  make  claim 
thereunder.  That  such  class  of  persons  in  whose  favor  such  provi- 
sions, limitations,  restrictions,  stipulations,  charges,  agreements  or  un- 
derstandings, might  be  enforced  are  unascertained,  or  not  being,  and 
such  persons  are  hereby  made  parties  defendant  to  this  suit,  and  are 
designated  as  all  persons  claiming  under  any  provision,  limitation,  restric 
tlon,  stipulation,  charges,  agreements  or  uncertainty  in  connection  with 
the  title  to  the  premises,  described  in  paragraph  one  of  this  bill,  as 
authorized  by  section  21  of  chapter  12  of  Act  No.  314  of  the  Public  Acts 
of  1915,  of  the  State  of  Michigan. 


212  THE  LAW  OF  LAND  CONTRACTS  [§  94 

14.  Your  orator  further  represents  that  the  unknown  heirs,  devisees, 
legatees,  personal  representatives  and  assigns  of  the  parties  referred 
to  in  the  preceding  paragraph  are  included  as  defendants  herein  under 
section  22  of  chapter  12  of  said  Act  No.  314,  and  more  than  fifteen  years 
have  elapsed  since  the  recording  of  their  title,  claims  or  liens  herein 
complained  of.  Inasmuch,  therefore,  as  your  orator  is  without  remedy  in 
the  premises,  except  in  a  court  of  equity,  your  orator  prays: 

I.  That  T.  J.  Provost,  Sydney  S.  Derby,  Calvin  Smith,  Pierpont  L.  Smith, 
Flavius  J.  Lake,  Sydney  Cushing,  Frank  B.  Daniels,  Johnathan  E.  Herrick, 
Samuel  W.  Dexter,  Matthias  L.  Stewart,  Hiram  W.  Hovey,  Bowman  W. 
Dennis  and  Sullivan  R.  Kelsey,  Dennis  &  Kelsey,  or  their  unknown  heirs, 
devisees,  legatees,  personal  representatives  and  assigns  and  any  class 
of  persons  who  by  reason  of  any  uncertainties,  provisions,  limitations, 
restrictions,  stipulation,  charges,  agreements  or  understanding  are  claim- 
ing thereunder  any  right,  title  or  interest  in  connection  with  their  title 
to  the  premises  described  in  paragraph  one  of  this  bill;  and  Herman 
Meier,  Carrie  Meier,  Ernest  Kelsey,  Mary  Kelsey,  Emma  Spangenberger. 
William  Miles,  Frank  Alden,  Ada  Alden,  P.  Hadsell,  Helen  Hadsell,  Town- 
ship of  Burns,  Shiawassee  County,  Michigan;  Fred  S.  Ruggles,  Effie  Rug- 
gles,  George  Downing,  Emma  Downing,  William  Betterly,  Cora  Betterly, 
Frank  E.  Tower,  Mamie  Tower,  John  N.  Ripley,  Vinnie  Ripley,  Edgar 
Calkins,  Kilea  Caulkins,  Robert  Coates,  Elsie  McGee,  Lucy  Kirkwood, 
Henry  Faul,  Charles  Fritz,  Henrietta  Fritz,  William  Harper,  Bertha 
Harper,  and  Frances  Campbell,  who  are  made  parties  defendant  hereto, 
may  be  required  to  answer  this  bill  of  complaint,  but  not  under  oath, 
their  answer  under  oath  being  hereby  expressly  waived. 

II.  That  upon  the  hearing  of  this  cause  this  Honorable  Court  will 
enter  a  decree  quieting  the  title  of  your  orator  in  and  to  the  premises 
described  in  paragraph  one  of  this  bill,  and  in  and  to  the  right-of-way 
and  easement,  as  an  easement,  described  in  paragraph  nine  of  this  bill, 
and  declaring  your  orator  to  be  the  owner  in  fee  simple  of  all  the  premises 
described  in  paragraph  one  of  this  bill,  and  the  owner  of  the  easement 
and  right-of-way  described  in  paragraph  nine  of  this  bill. 

III.  That  by  said  decree  of  this  Honorable  Court  said  clouds  referred 
to  in  said  Bill  of  Complaint  be  removed  from  your  orator's  title  in  the 
premises  described  in  paragraphs  one  and  nine  of  this  Bill  of  Complaint. 

IV.  That  by  the  decree  of  this  Honorable  Court  as  against  all  defend- 
ants named  in  this  Bill  of  Complaint  your  orator  be  given  the  right  to 
flow  the  lands  described  in  subdivision  two  of  paragraph  one  of  this 
bill  of  complaint,  for  the  purpose  of  obtaining  power  for  the  operations  of 
the  mill  located  upon  the  first  description  of  land  in  said  paragraph  one  of 
this  bill  of  complaint. 

V.  That  all  defendants  named  or  unnamed  herein  be  by  a  decree  of  this 
Honorable  Court  enjoined  from  interfering  with  your  orator's  right  of 
possession  of  the  premises  described  in  paragraph  one  of  said  bill  and 
from  interfering  with  your  orator's  right  of  possession  of  the  premises 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  213 

described  in  paragraph  one  of  said  bill  and  from  interfering  with  your 
orator's  right  to  use  the  easement  and  right-of-way  described  in  para- 
graph nine  of  this  Bill  of  Complaint. 

VI.  That  your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  shall  be  agreeable  to  equity  and  good  conscience. 

J.  MARTIN  MOORE. 
SETH  Z.  PULVER, 
Attorney  for  Plaintiff, 

Business  address,  Owosso,  Mich. 

(c)  Answer  of  Defendants  Herman  Meier,  et  al. —  (Caption.)  The 
answer  of  defendants,  Herman  Meier,  Carrie  Meier,  Ernest  Kelsey,  Mary 
Kelsey,  Emma  Spangenberger,  Perry  Hadsell,  Helen  Hadsell,  John  N. 
Ripley,  Minnie  Ripley,  Edgar  Caulkins,  Kilea  Caulkins,  Robert  Coats, 
Elsie  McGee,  Lucy  Kirkendol,  Henry  Faul,  Charles  Fritz,  Henrietta 
Fritz  and  Frances  Campbell  and  Fred  L.  Ruggles  and  Erne  Ruggles,  to 
the  bill  of  complaint  filed  herein. 

These  defendants,  answering  said  bill  of  complaint,  or  so  much  thereof 
as  they  are  advised  that  it  is  material  or  necessary  for  them  to  answer, 
answering  say: 

1.  These  defendants  have  no  knowledge  as  to  whether  Samuel  W.  Dex- 
ter was  the  owner  of  a  piece  of  land  such  as  described  in  paragraph  one 
of  said  Bill  of  Complaint,  but  they  are  informed  and  believe  and  charge 
the  truth  to  be  that  Samuel  W.  Dexter  never  took  possession  of  or  occu 
pied  the  land  therein  described. 

2.  These  defendants  further  answering  say  that  they  have  no  knowl- 
edge, information  or  belief  concerning  the  various  deeds  set  forth  in  said 
Bill  of  Complaint  further  than  stated  in  said  bill,  and  from  such  state- 
ments, they  have  no  information  from  which  they  can  affirm  or  deny 
the  existence  or  correctness  of  such  deeds,  and  they  leave  plaintiff  to  his 
proof. 

3.  These  defendants  further  answering  deny  that  the  blue  print  at- 
tached to  said  bill  of  complaint  shows  a  correct  survey  or  representation 
of  any  existing  state  of  facts  in  and  concerning  said  mill  pond. 

4.  These  defendants  further  answering  admit  that  many  years  ago, 
the  exact  time  they  cannot  state,  plaintiff's  grantors  had  a  grist  mill 
on  the  bank  of  the  Shiawassee  River  on  that  part  of  section  24  west 
of  the  Grand  River  Road  in  the  Township  of  Burns,  and  as  to  that  portion 
of  the  land  claimed  by  plaintiff  west  of  the  Grand  River  Road  as  now 
located  none  of  the  defendants  make  any  claim,  but  these  defendants 
deny  that  the  land  claimed  by  plaintiff  and  attempted  to  be  described  by 
him  in  his  bill  of  complaint  on  the  east  side  of  said  highway  is  how  or 
ever  was  owned  by  plaintiff  or  used  for  the  purpose  of  water  power 
rights;  and  they  deny  that  a  dam  was  maintained  continuously  across 
the  Shiawassee  River  and  that  the  land  claimed  east  of  the  Grand  River 
Road  was  used  for  the  purpose  of  operating  said  grist  mill,  and  they 
deny  that  said  property  east  of  the  said  dam  and  the  erection  of  a  mill 


214  THE  LAW  OF  LAND  CONTRACTS  [§  94 

has  been  continuously  used  or  operated  for  mill  purposes  down  to  the 
present  time  or  down  to  within  twenty  years  of  the  date  of  the  filing 
of  the  bill  of  complaint  in  this  cause.  On  the  contrary  they  show  to 
the  court  that  many  years  ago,  to-wit,  more  than  fifty  years  ago,  the 
Shiawassee  River,  so-called,  which  is  supposed  to  make  the  mill  pond 
here  in  dispute,  was  the  north  branch  of  the  Shiawassee  River,  being  a 
natural  stream  of  water  varying  in  depth  from  one  to  five  feet  and  in 
width  from  twenty  to  thirty  feet,  having  banks  from  five  to  twenty  feet 
high,  coming  from  the  lakes  over  in  Argentine,  passing  just  south  of  the 
corporate  limits  of  the  Village  of  Byron  and  joining  with  the  south 
branch,  making  the  Shiawassee  River  proper;  that  at  a  point  about  forty 
rods  east  of  the  confluence  of  the  two  branches,  the  north  branch  of  said 
river  passed  through  high  ground  termed  by  some  a  hog-back  or  Indian 
mound.  The  said  river  was  dammed  across  on  said  hog-back  or  rise 
of  ground  and  a  mill  race  cut  through  at  the  north  of  said  hog's-back 
to  supply  water  for  running  a  grist  mill,  at  which  place  also  the  defend- 
ants are  informed  and  believe  and  charge  a  bridge  was  put  across  and 
for  some  time  the  road  called  the  Grand  River  Road  followed  along  on 
the  natural  rise  of  ground  used  as  a  dam  for  said  mill  pond;  that, 
to-wit,  for  more  than  twenty-five  years  last  past  the  highway  has  been 
moved  and  used  at  a  point  about  thirty  rods  west  of  the  place  where 
the  public  used  to  drive  their  conveyances  on  said  natural  elevation, 
and  that  for  all  of  such  time,  to-wit,  for  thirty  years,  or  more,  no  high- 
way or  passageway  of  any  kind  has  existed  around  or  about  said  dam. 
On  the  contrary  the  original  owners  used  and  owned  said  land  and  have 
deeds  of  the  same  down  to  and  including  all  of  the  land  west  of  the  land 
used  as  an  embankment.  And  defendants  further  show  to  the  court  that 
at,  to-wit,  thirty  years  ago,  a  hole  was  made  through  the  center  portion 
of  said  hog's-back  and  a  race  was  made  for  the  purpose  of  running  a 
saw  mill;  that  such  race  continued  to  wear  away  the  silt  and  embank- 
ment and  for  more  than  thirty  years  last  past  the  original  channnel  of 
the  Shiawassee  River  has  been  through  the  center  portion  of  said  hog's- 
back  down  to  the  junction  with  the  south  branch  of  the  Shiawassee 
River  instead  of  following  its  natural  channel  which  was  somewhat  to 
the  south  of  the  saw  mill  channel,  and  the  change  also  has  practically 
emptied  the  water  from  the  mill  pond,  and  the  Shiawassee  River  is  now 
confined  to  its  banks,  except  at  times  of  a  flood  or  freshet  when  there 
Is  a  head  of  water  in  the  low  and  marshy  parts  of  said  ancient  mill  pond, 
and  In  the  low  water  and  in  dry  weather  said  mill  pond  consists  of  ponds 
or  mud-holes  filled  with  logs,  filth  and  decaying  vegetation  to  such  an 
extent  that  it  is  injurious  to  the  health  of  all  of  the  inhabitants  whose 
lands  adjoin  said  basin  formerly  used  as  a  mill  pond  and  which  is  mias- 
matic now  and  threatens  the  health  of  the  inhabitants  of  the  Village  of 
Byron  and  the  whole  community  in  that  vicinity. 

5.  These  defendants  further  answering  show  to  the  court  that  for 
many  years  the  mill  at  Byron  had  become  out  of  repair  and  was  not 
operated  as  a  mill;   that  later,  to-wit,  twenty  years  ago,  the  mill  was 


S  94 1  REMEDYING   DEFECTS  IN  THE  TITLE  215 

burned  and  the  property  remained  useless  for  many  years,  but  defend- 
ants admit  that  at  the  present  time  the  plaintiff  has  a  little  feed  mill 
on  the  site  of  the  mill  property  west  of  the  highway  and  said  mill  gets 
Its  power  to  some  extent  from  the  race  connected  with  the  Shiawassee 
River,  but  the  most  of  the  water  from  the  said  river  goes  through  the 
dam  where  the  saw  mill  race  formerly  existed  and  is  not  upon  any 
property  claimed  by  the  plaintiff. 

6.  These  defendants  further  answering  deny  that  they  occupy  any  land 
or  claim  interest  in  any  land  except  such  lands  as  they  and  their  grantors 
have  had  conveyances  of  and  under  which  they  have  claimed  title  and 
have  been  in  the  open,  peaceable,  continuous,  notorious  and  hostile  pos- 
session for  more  than  thirty  years,  and  they  deny  that  the  plaintiff  or 
his  grantors  have  had  or  had  any  right  to  have  any  possession  or  use 
of  their  property  during  the  past  thirty  years. 

7.  Further  answering,  the  said  Elsie  McGee  avers,  and  the  other  defend- 
ants herein  upon  information  and  belief  aver,  that  she  is  in  possession 
of  all  the  land  between  the  Grand  River  Road,  the  race  of  the  Byron 
mill  property,  the  poud  of  the  Byron  mill  property,  and  the  race  used 
for  a  saw  mill,  all  on  section  twenty-four  in  the  Township  of  Burns;  that 
the  plaintiff  has  a  right  to  drive  over  the  same  to  go  to  his  mill  pond 
but  has  no  other  right  in  and  to  said  property,  and  plaintiff  and  his 
grantors  have  not  been  in  possession  of  any  part  of  it,  other  than  herein 
stated,  for  more  than  forty  years. 

8.  Further  answering,  the  said  Charles  Fritz  and  Henrietta  Fritz  say 
that  they  are  in  possession  and  have  the  ownership  of  a  strip  of  land 
bounded  on  the  north  by  the  land  of  Elsie  McGee,  on  the  east  by  the 
Byron  mill  pond,  on  the  south  by  the  old  bed  of  the  north  branch  of 
the  Shiawassee  River  and  by  land  of  these  other  defendants,  and  on  the 
west  by  the  Grand  River  Road,  which  does  not  now  and  never  did  belong 
to  said  plaintiff  or  his  grantors  and  in  which  plaintiff  or  his  grantors  have 
never  had  any  possession  or  control. 

9.  Further  answering,  the  said  Emma  Spangenberger,  John  M.  Ripley, 
Minnie  Ripley,  Edgar  Caulkins,  Kilea  Caulkins,  Robert  Coats,  Lucy 
Kirkendol,  Henry  Faul  and  Frances  Campbell  say  that  they  own  land  by 
conveyances  from  their  grantors  which  is  bounded  on  one  side  by  the 
Byron  mill  pond  and  the  Shiawassee  River,  and  they  show  to  the  court 
that  they  and  their  grantors  have  occupied  such  land  for  more  than  thirty 
years  last  past  under  a  claim  of  title;  that  their  occupancy  has  been 
continuous,  open,  peaceable,  notorious  and  hostile;  that  the  plaintiff 
has  not  now  and  never  has  had  any  interest  in  said  land  and  is  not 
entitled  to  any  relief  against  these  defendants.  On  the  contrary  they 
show  to  the  court  that  the  claiming  by  the  plaintiff  of  some  paper  title 
to  these  premises,  if  he  has  such,  is  a  cloud  upon  their  title  which  they 
ask  to  have  removed,  and  they  also  show  to  the  court  that  the  Byron 
mill  pond,  so-called,  being  nothing  but  a  basin  or  miasmatic  pool,  breed- 
ing stench  and  filth  and  threatening  the  health  of  all  of  these  defend- 
ants, is  a  menace  to  the  community  and  a  public  nuisance  which  they 


216  THE  LAW  OF  LAND  CONTRACTS  [§  94 

believe  in  equity  they  are  entitled  to  have  abated  and  removed,  and  they 
ask  that  under  the  final  order  of  this  court  that  such  nuisance  be  abated 
and  the  health  of  the  community  protected  therefrom. 

10.  Further  answering,  the  said  Perry  Hadsell  and  Helen  Hadsell  say 
that  the  lands  occupied  by  them  are  lands  which  have  come  to  them  from 
and  through  various  conveyances  and  are  lands  which  they  and  their 
grantors  have  held  as  owners  with  open,  notorious,  peaceable  and  con- 
tinuous possession  for  more  than  fifty  years;  that  the  plaintiff  has  no 
right  to  the  possession  thereof,  and  if  his  deed,  or  any  deeds,  pretends 
to  cover  said  lands,  they  ask  to  have  such  deed  cancelled  and  removed 
from  the  title  of  their  property,  and  they  ask  to  have  the  miasmatic 
nuisance  known  as  the  Byron  mill  pond  abated  and  the  health  of  the 
community  protected  against  a  spot  which  is  continually  breeding  disease 
and  endangering  the  public  health. 

11.  And  the  defendant  Emma  Spangenberger  shows  to  the  court  that 
she  has  a  deed  of  real  estate  covering  the  land  between  the  Grand  River 
Road  on  the  south  and  the  Byron  mill  pond  and  the  north  branch  of  the 
Shiawassee  River  on  the  north;  that  such  land  is  valuable  farming  land 
and  that  she  and  her  grantors  have  been  in  open,  notorious,  peaceable, 
continuous  and  hostile  possession  of  the  land  that  she  now  occupies  for 
more  than  forty  years  last  past;  that  she  has  paid  taxes  thereon  and 
improved  it  and  was  not  aware  that  by  doing  so  she  was  encroaching 
upon  anybody's  frog  pond  or  miasmatic  mud-hole;  that  plaintiff  or  his 
grantors  have  not  had  or  been  in  the  possession  of  any  of  the  property 
which  she  now  occupies,  and  she  shows  to  the  court  that  the  mill  pond, 
so-called,  except  in  time  of  freshet  or  high  water,  is  a  menace  to  public 
health,  and  she  asks  that  when  a  final  decree  is  made  in  this  cause 
that  the  same  be  abated  as  a  nuisance  kept  and  mintained  by  the  plaintiff. 

12.  And  the  defendants  Ernest  Kelsey  and  Mary  Kelsey  show  the  court 
that  a  part  of  their  farm  is  on  the  north  side  of  the  Grand  River  Road 
and  adjoining  the  north  branch  of  the  Shiawassee  River;  that  it  was 
purchased  by  their  relatives  and  grantors  more  than  forty  years  ago 
and  for  the  express  purpose  of  having  the  river  as  a  place  to  water  their 
stock;  that  the  banks  of  the  Shiawassee  River  along  their  side  are  from 
five  to  twenty  feet  high;  that  the  river  at  all  times  is  confined  within 
its  banks;  and  that  the  plaintiff  at  no  time  has  had  possession  of,  nor 
did  his  grantors  ever  own  any  right  or  interest  in  their  said  property; 
and  they  aver  the  truth  to  be  that  the  plaintiff  is  not  now  and  never  has 
had  any  proprietary  right  in  the  Shiawassee  River  as  such;  that  it  is  a 
public  stream  and  as  such  the  plaintiff  has  only  a  right  to  use  the  water 
coming  from  said  river  in  common  with  all  of  the  defendants  whose  lands 
adjoin  said  river  and  who  have  had  the  use  thereof  for  such  purposes  as 
they  saw  fit  for  the  past  fifty  years,  and  they  show  to  the  court  that  they 
and  their  grantors  have  also  been  in  open,  notorious,  peaceable,  continu- 
ous and  hostile  possession  of  all  of  said  land  to  the  center  of  said  river 
to  the  north  of  their  property  for  the  last  fifty  years;    and  they  deny 


K  94]  REMEDYING   DEFECTS   IN  THE  TITLE  217 

that  the  plaintiff  has  any  color  of  title  or  right  of   possession   to  any 
part  of  said  land. 

13.  And  the  defendants  Herman  Meier  and  Carrie  Meier  also  answer- 
ing said  bill  of  complaint  show  to  the  court  that  they  and  their  relatives 
and  grantors  have  had  a  deed  of  the  property  which  they  now  occupy 
adjoining  the  Shiawassee  River  and  a  part  of  the  Byron  mill  pond, 
so-called,  for  the  past  forty  years;  that  all  the  land  which  they  now 
occupy  and  claim  an  interest  in  they  have  had  the  open,  notorious, 
peaceable,  hostile  and  continuous  possession  for  the  whole  of  said  forty 
years  without  let  or  hindrance  from  any  person;  and  they  show  to  the 
court  that  if  the  plaintiff  claims  that  he  has  any  paper  title  to  any  part 
of  said  land  that  they  are  entitled  to  have  the  same  removed  as  a  cloud 
upon  the  title  of  their  property;  that  for  the  most  part  where  the  Shia- 
wassee River  passes  through  their  land  it  has  well  defined  banks  and 
is  a  public  stream  of  water  in  which  the  plaintiff  has  no  proprietary 
right  and  has  no  right  to  occupy  its  banks  or  any  part  thereof.  And 
these  defendants  show  to  the  court  that  during  the  past  twenty  years 
the  Byron  mill  pond,  so-called,  has  been  practically  a  muddy  basin,  having 
some  low  or  swampy  spots  in  which  decaying  vegetation  and  debris 
collect  and  foul  the  air  of  the  whole  neighborhood;  that  said  pond  as  it 
now  exists  is  nothing  but  a  miasmatic  mud-hole,  breeding  disease  and 
endangering  the  health  of  the  whole  community;  and  they  ask  that  in 
the  decree  that  shall  be  made  in  this  case  that  the  deed  which  is  a  cloud 
upon  their  title,  if  there  is  one,  shall  be  removed  and  that  the  said 
empty  and  muddy  mill  pond  shall  be  declared  to  be  a  nuisance  and 
ordered  to  be  drained  out  and  kept  free  from  stagnant  water  and  mias- 
matic conditions. 

14.  And  the  defendants  Fred  L.  Ruggles  and  Effie  Ruggles  answering 
say  that  the  property  which  they  now  occupy  adjoining  said  Byron  mill 
pond  has  been  in  the  open  peaceable,  continuous,  notorious  and  hostile 
possession  of  these  defendants  and  their  relatives  and  grantors  from 
the  time  that  the  Village  of  Byron  was  platted,  and  that  plaintiff  and  none 
of  his  grantors  have  had  any  possession  or  right  to  possession  of  said 
property  during  said  time,  and  if  plaintiff  has  any  paper  title  thereto,  the 
same  is  a  cloud  upon  the  title  of  these  defendants,  and  they  ask  that  the 
same  be  removed  by  this  court  when  the  final  decree  is  made  in  this 
case;  and  they  also  ask  that  the  menace  to  the  health  of  the  entire 
community  in  the  form  of  said  mill  pond  be  ordered  drained  and  kept 
free  from  stagnant  water. 

15.  And  these  defendants,  further  answering,  deny  that  the  plaintiff 
has  any  right  to  the  water  in  the  Shiawassee  River  different  or  other 
than  that  of  these  defendants  who  own  land  adjoining  said  river;  and 
they  deny  that  the  plaintiff  has  any  right  whatever  in  the  real  estate 
belonging  severally  to  these  defendants;  and  they  deny  each  and  every 
material  allegation  in  said  bill  contained  not  herein  more  specifically 
traversed  or  denied,  and  they  ask  that  the  rights  of  each  defendant  be 
determined  and  that  they  be  protected,  both  in  their  property  and  in  their 


218  THE  LAW  OP  LAND  CONTRACTS  [§  94 

health  and  person,  from  the  attempted  legal  encroachment  of  said  plain- 
tiff, and  they  ask  that  they  have  a  decree  for  costs  against  said  plaintiff 
and  such  other  and  further  relief  in  the  premises  as  the  proofs  in  this 
case  shall  show  that  they  are  entitled  to.  Carrie  Meier,  Ernest  Kelsey, 
Mary  Kelsey,  Emma  Spangenberger,  Perry  Hadsell,  Helen  Hadsell,  John 
N.  Ripley,  Minnie  Ripley,  Edgar  Caulkins,  Kilea  Caulkins,  Robert  Coats, 
Elsie  McGee,  Lucy  Kirkendoll,  Henry  Faul,  Charles  Fritz,  Henrietta 
Fritz,  Frances  Campbell,  Fred  L.  Ruggles,  Erne  Ruggles,  Herman  Meier. 

By  A.  L.  CHANDLER  &  E.  F.  WILSON, 

Attorneys  for  said  Defendants. 
A.  L.  CHANDLER  &  E.  F.  WILSON, 
Attorneys  for  said  20  Defendants. 

(d)  Answer  of  T.  J.  Provost,  et  al. —  (Caption.)  The  answer  of  the  above 
named  defendants  to  the  bill  of  complaint  of  the  above  named  plaintiff. 

These  defendants  saving  and  reserving  unto  themselves  all  manner 
of  exception  to  the  bill  of  complaint  of  the  above  named  plaintiff  filed  in 
this  cause,  for  answer  thereunto,  answering  say: 

These  defendants  deny  each  and  every  allegation  contained  in  the 
plaintiff's  bill  of  complaint. 

ALBERT  L.  NICHOLS, 
Guardian  Ad  litem  of  all  of  the  above 
named  defendants. 

(e)  Answer  of  Defendants  William  Miles,  et  al.— (Caption.)  The  answer 
of  the  defendants,  William  Miles,  Frank  Alden  and  Adah  Alden  to  the 
bill  of  complaint  filed  in  this  cause. 

The  defendants,  answering  said  bill  of  complaint,  or  so  much  as  they 
are  advised  it  is  material  or  necessary  for  them  to  answer,  answering  say: 

1.  These  defendants  have  no  knowledge  as  to  whether  Samuel  W. 
Dexter  was  the  owner  of  a  pfece  of  land  such  as  described  in  paragraph 
one  of  said  bill  of  complaint,  but  they  are  informed  and  believe,  and 
charge  the  truth  to  be,  that  since  these  defendants  received  their  deeds 
of  the  property  mentioned  in  such  conveyances  no  person  ever  took 
possession  of  or  occupied  the  land  mentioned  therein  but  themselves. 

2.  These  defendants,  further  answering,  say  that  they  have  no  knowl- 
edge, information  or  belief  concerning  the  varous  deeds  set  forth  in  said 
bill  of  complaint  further  than  stated  in  said  bill,  and  from  such  statements 
they  have  no  information  from  which  they  can  affirm  or  deny  the  exist- 
ence or  correctness  of  such  deeds,  and  they  leave  plaintiff  to  his  proof; 
and  they  aver  the  truth  to  be  that  plaintiff  never  had  more  than  a  flowage 
right  to  any  of  such  property  and  that  such  right  was  surrendered  and 
contracted  down  to  the  natural  banks  of  the  Shiawassee  River,  and  the 
claim  of  plaintiff  that  he  has  a  mill  pond  formed  by  said  stream  is  a  mere 
subterfuge  to  perpetuate  a  nuisance  and  mud-hole  in  the  Township  of 
Burns  and  try  to  hold  the  same  for  speculative  purposes  to  the  injury 
and  detriment  of  all  of  the  lands  adjoining  said  Shiawassee  River  in 
that  part  of  the  Township  of  Burns. 


§94] 


REMEDYING   DEFECTS  IN  THE  TITLE  219 


3.  These  defendants,  further  answering,  deny  that  the  blue  print  at- 
tached to  said  bill  of  complaint  shows  a  correct  survey  or  representation 
of  any  existing  state  of  facts  in  and  concerning  said  mill  pond  for  the 
thirty  years  last  passed. 

4.  These  defendants,   further  answering,   admit  that  many  years  ago, 
the  exact  time  they  cannot  state,  plaintiff's  grantors  had  a  grist  mill  on 
the  bank  of  the  Shiawassee  River  on  that  part  of  section  24  west  of  the 
Grand  River  Road  in  the  Township  of  Burns,  as  now   located,  and  as 
to  that  portion  of  the  land  claimed  by  plaintiff,  west  of  the  Grand  River 
Road,  none  of  these  defendants  make  any  claim,  but  these  defendants 
deny  that  the  land  claimed  by  plaintiff  and  attempted  to  be  described  by 
him  in  his  bill  of  complaint,  on  the  east  side  of  said  highway,  is  now 
or  ever  was  owned  by  plaintiff  or  used  for  the  purpose  of  water  power; 
and  they  deny  that  a  dam  was  maintained  continuously  across  the  Shia- 
wassee River  and  that  the  land  claimed,  east  of  the  Grand  River  Road, 
was  used  for  the  purpose  of  operating  said  grist  mill,  and  they  deny  that 
said  property,  east  of  the  Grand  River  Road,  from  the  date  of  the  con 
struction  of  said  dam  and  the  erection  of  a  mill  race,  has  been  continu- 
ously used  or  operated  for  mill  purposes  down  to  the  present  time  or  down 
to  within  twenty  years  of  the  date  of  the  filing  of  the  bill  of  complaint 
in  this  cause.    On  the  contrary,  they  show  to  the  court  that  many  years 
ago,  to-wit,  more  than  fifty  years  ago,  the  Shiawassee  River,  so-called, 
which  is  supposed  to  make  the  mill  pond  herein  disputed,  was  the  north 
branch  of  the  Shiawassee  River,  being  then  and  is  now  a  stream  of  water 
varying  in  depth  from  one  to  five  feet  and  in  width  from  twenty  to  thirty 
feet,  having,  in  places,  banks  from  five  to  twenty  feet  high,  coming  from 
the  lakes  over  in  Argentine,  passing  just  south  of  the  corporate  limits 
of  the  Village  of  Byron  and  joining  with  the  south  branch  making  the 
Shiawassee  River  proper.    That  at  a  point,  to-wit,  forty  rods  east  of  the 
confluence  of  the  two  branches,  the  north  branch  of  said  river  passes 
through  high  ground,  termed  by  some  a  hog-back  or  Indian  mound,  com- 
posed of  sand,  and  said  north  branch  was  dammed  across  on  said  hog 
back  or  rise  of  gTound  and  a  mill-race  cut  through  at  the  north  end  of 
said  hog's-back  to  supply  water  for  running  a  grist  mill,  at  which  place 
also,  the  defendants  are  informed  and  believe,  and  charge  the  truth  to 
be,  that  a  bridge  was  put  across  and  for  some  time  the  road  called  the 
Grand   River   Road   followed   along  on  the   natural   rise  of  ground  used 
as  a  dam  for  said  mill  pond;  that,  to-wit,  for  more  than  twenty-five  years 
last   past   the   highway    has   been   moved    and    used   at   a   point,   to-wit, 
thirty  rods  west  of  the  place  where  the  public  used  to  drive  their  con 
veyances  on  said  natural  elevation,  and  that  for  all  of  such  time,  to-wit, 
thirty  years  or  more,  no  highway  or  passage-way  of  any  kind  has  existed 
around  or  about  said  dam.     On  the  contrary,  the  original  owners  and 
their  grantees  of  the  land  along  the   Shiawassee  River  have  used  and 
owned  the  same  down  to  the  banks  of  Shiawassee  River  under  the  con- 
veyances which  were  given  to  them  of  land  to  said  river  and  mill  pond; 
and  defendants  further  show   to  the  court  that  at,  to-wit,  thirty  years 


220  THE  LAW  0F  LAND  CONTRACTS  [§  94 

ago,  a  hole  was  made  through  the  center  portion  of  said  hog's-back  and 
a  race  was  made  for  the  purpose  of  running  a  saw  mill;  that  such  race, 
being  through  sand,  continued  to  wear  away  the  embankment  and  for 
more  than  thirty  years  last  passed  the  channel  of  the  Shiawassee  River 
has  been  through  the  center  portion  of  said  hog-back  down  to  the  junction 
with  the  south  branch  of  the  Shiawassee  River  instead  of  following  its 
former  channel,  and  this  change  in  the  channel  also  has  practically 
emptied  the  water  from  the  Byron  mill  pond,  so-called,  and  the  Shiawassee 
River  is  practically  confined  to  its  banks  except  at  times  of  a  flood  or 
freshet  when  the  river  leaves  its  banks  and  overflows  in  the  low  and 
marshy  parts  of  said  former  pond. 

5.  These  defendants,  further  answering,  show  to  the  court  that  for 
many  years  the  mill  at  Byron  had  become  antiquated  and  out  of  repair 
and  was  not  operated  as  a  mill;  that  later,  to-wit,  twenty  years  ago,  the 
mill  was  burned  and  the  property  remained  useless  for  many  years,  but 
defendants  admit  that  at  the  present  time  the  plaintiff  has  a  little  feed 
mill  on  the  site  of  the  mill  property  west  of  the  highway,  and  said  mill 
gets  its  power,  to  some  extent,  from  the  race  connected  with  the  Shia- 
wassee River,  but  the  most  of  the  water  from  said  river  goes  through  the 
dam  where  the  saw  mill  formerly  existed  and  is  not  upon  any  property 
claimed  by  the  plaintiff. 

6.  These  defendants,  further  answering,  deny  that  they  occupy  any 
land  or  claim  interest  in  any  land  except  such  lands  as  they  and  their 
grantors  have  had  conveyances  of  and  under  which  they  claim  title  and 
have  been  in  the  open,  peaceable,  continuous,  notorious  and  hostile  pos- 
session for  more  than  thirty  years,  and  they  deny  that  the  plaintiff 
or  his  grantors  have  had  any  right  to  have  any  possession  or  use  of  their 
property  during  the  past  thirty  years;  that  the  plaintiff  has  not  now  and 
never  has  had  any  interest  in  said  land  and  is  not  entitled  to  any  relief 
against  these  defendants.  On  the  contrary,  they  show  to  the  court  that 
the  claiming  by  the  plaintiff  of  some  paper  title  to  these  premises,  if 
he  has  such,  is  a  cloud  upon  their  title  which  they  ask  to  have  removed, 
and  they  also  show  to  the  court  that  the  Byron  mill  pond,  so-called,  being 
nothing  but  a  dry  basin  or  miasmatic  pool,  breeding  stench  and  filth 
and  threatening  the  health  of  all  of  these  defendants,  is  a  menace  to 
the  community  and  a  public  nuisance  which  they  believe  in  equity  they 
are  entitled  to  have  abated  and  removed,  and  they  ask  that  under  the 
final  order  of  this  court  that  such  nuisance  be  abated  and  the  health  of 
the  community  be  protected  therefrom. 

7.  And  these  defendants,  further  answering,  deny  that  the  plaintiff  has 
any  right  to  the  water  in  the  Shiawassee  River  different  or  other  than 
that  of  these  defendants  who  own  land  joining  said  river,  and  they  deny 
that  the  plaintiff  has  any  right  whatever  in  the  real  estate  belonging 
severally  to  these  defendants;  and  they  deny  each  and  every  material 
allegation  in  said  bill  of  complaint  not  herein  specifically  traversed  or 
denied,  and  they  ask  that  the  rights  of  each  defendant  be  determined 


§  94]  REMEDYING  DEFECTS  IN  THE  TITLE  221 

and  that  they  be  protected  both  in  their  property  and  in  their  health 
and  person,  and  they  ask  that  they  have  such  other  and  further  relief 
in  the  premises  as  the  proofs  in  this  case  shall  show  that  they  are 
entitled  to.  A  L.  CHANDLER, 

Attorney  for  Defendants. 

(f)  Answer  of  Defendants  Frank  E.  Tower,  et  al—  (Caption.)  The 
answer  of  defendants  Frank  E.  Tower,  Mamie  L.  Tower,  William  Betterly 
and  the  Township  of  Burns. 

These  defendants,  answering  said  bill  of  complaint,  or  so  much  thereof 
as  they  are  advised  it  is  material  or  necessary  for  them  to  answer, 
answering  say: 

1.  These  defendants  have  no  knowledge  as  to  whether  Samuel  W.  Dex- 
ter was  the  owner  of  a  piece  of  land  such  as  described  in  paragraph 
one  of  said  bill  of  complaint,  but  they  are  informed  and  believe,  and 
charge  the  truth  to  be,  that  since  these  defendants  received  their  deeds 
of  the  property  mentioned  in  such  conveyances  no  person  ever  took 
possession  of  or  occupied  the  land  mentioned  therein  but  themselves. 

2.  These  defendants,  further  answering,  say  that,  upon  information  and 
belief,  they  deny  all  the  statements  contained  in  paragraphs  two,  three, 
four,  five  and  six  of  plaintiff's  bill  of  complaint  relative  to  the  rights 
of  plaintiff  obtained  through  certain  deeds  and  conveyances  in  said 
paragraphs  set  forth  excepting  that  referring  to  the  ownership  of  certain 
lands  west  of  the  Pontiac  and  Grand  River  Road  by  the  plaintiff,  and  as 
to  such  statement  of  ownership,  they  neither  admit  nor  deny  the  same, 
not  having  sufficient  information  in  regard  thereto  upon  which  to  base 
a  belief,  and  they,  therefore,  put  plaintiff  to  his  proof  thereof. 

3.  These  defendants  admit  that  they  are  the  owners  of  certain  lands 
and  rights  adjacent  to  the  premises  described  in  plaintiff's  bill  of  com- 
plaint as  set  forth  in  paragraph  seven  thereof;  but  they  deny  the  state- 
ment in  said  paragraph  that  these  defendants  have  no  right  or  interest 
in  any  of  the  premises  described  in  said  plaintiff's  bill  of  complaint. 

4.  These  defendants  deny  that  the  map,  diagram  or  blue  print,  referred 
to  in  the  eighth  paragraph  of  plaintiff's  said  bill  and  marked  Exhibit  A, 
is  in  any  way  a  correct  or  accurate  map  of  the  premises  described  In 
said  bill  or  any  of  the  premises  owned  by  these  defendants. 

5.  These  defendants  neither  admit  nor  deny  the  contents  of  plaintiff's 
paragraph  nine  in  his  said  bill,  not  having  sufficient  knowledge  or  infor- 
mation to  the  facts  therein  stated  upon  which  to  form  a  belief. 

6.  These  defendants,  further  answering,  say  that  they  have  no  knowl- 
edge, information  or  belief  concerning  the  other  matters  and  things 
set  forth  in  said  bill  of  complaint,  further  than  as  above  stated,  upon 
which  to  form  a  belief,  and  they  leave  plaintiff  to  his  proof  thereof;  and 
they  aver  the  truth  to  be  that  the  plaintiff  never  had  more  than  a  flow- 
age  right  upon  any  portion  of  the  property  described  in  his  said  bill  lying 
east  of  the  highway,  known  as  the  Pontiac  and  Grand  River  Road,  and 


222  THE  LAW  0F  LAND  CONTRACTS  [§  94 

that  such  right  has  been  surrendered  and  lost  by  non-user  and  con- 
tracted down  to  the  natural  and  original  banks  of  the  Shiawassee  River 
as  the  same  existed  prior  to  any  of  the  dates  set  forth  in  plaintiff's  said 
bill,  and  that  the  claim  of  plaintiff  that  he  has  a  mill  pond  east  of  the 
said  highway  is  a  mere  subterfuge  to  perpetuate  a  nuisance  and  mud-hole 
in  the  Township  of  Burns  and  try  to  hold  the  same  for  speculative  pur 
poses  to  the  injury  and  detriment  of  all  of  the  lands  adjoining  said 
Shiawassee  River  in  that  part  of  the  Township  of  Burns. 

7.  And  these  defendants  admit  that  a  long  time  ago,  the  exact  time  of 
which  cannot  be  stated,  plaintiff's  grantors  had  a  grist  mill  on  the  bank 
of  the  Shiawassee  River  on  that  portion  of  section  24  lying  west  of 
the  Pontiac  and  Grand  River  Road,  aforesaid,  but  they  aver  that  a  long 
time  ago  the  said  grist  mill  was  destroyed,  to-wit,  more  than  twenty  years 
ago,  and  that  none  of  the  land  described  as  lying  east  of  said  Grand 
River  has  since  been  used  for  mill  purposes  or  for  flowage  or  for  the 
purpose  of  providing  power  for  the  operation  of  a  mill  referred  to  in 
plaintiff's  said  bill,  and  that  these  defendants,  and  all  of  them,  have, 
for  a  period  of,  to-wit,  more  than  twenty  years,  been  in  open,  peaceable 
adverse,  notorious,  hostile  and  continuous  possession  of  the  lands  claimed 
by  them  down  to  the  original  banks  of  the  Shiawassee  River,  and  that 
the  claim  of  plaintiff,  set  forth  in  said  bill,  of  any  rights  upon  their  said 
premises  constitutes  a  cloud  upon  their,  the  said  defendants',  titles  thereto 
which  they  are  entitled  to  have  removed  by  the  decree  of  this  court; 
and  they  deny  that  the  plaintiff  has  any  right  to  the  water  in  the  Shia- 
wassee River  different  or  other  than  that  of  these  defendants  who  own 
land  joining  said  river,  and  they  deny  that  the  plaintiff  has  any  right 
whatever  in  the  real  estate  belonging  severally  to  these  defendants;  and 
they  deny  each  and  every  material  allegation  in  said  bill  of  complaint 
not  herein  specifically  traversed  or  denied,  and  they  ask  that  the  rights 
of  each  defendant  be  determined  and  that  they  be  protected  both  in  their 
property  and  in  their  health  and  person,  and  they  ask  that  they  have 
such  other  and  further  relief  in  the  premises  as  the  proofs  in  this  case 

shall  show  that  they  are  entitled  to.  y^j  ..-,,.„«,„„ 

(Signed)     A.  L.  CHANDLER, 

Attorney  for  Defendant. 

(g)  Decree. —  (Caption.)  At  a  session  of  said  court  held  at  the  City  of 
Corunna  in  said  county,  on  the  1st  day  of  May,  A.  D.  1917. 

Present,  Hon.  Selden  S.  Miner,  Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  pleadings  and  proofs 
taken  in  open  court,  and  after  consideration  of  said  pleadings,  and  hearing 
of  said  proofs  and  the  arguments  of  counsel  for  the  respective  parties,  it 
is  ordered,  adjudged  and  decreed  that  the  said  plaintiff  is  the  owner,  in 
fee  simple,  and  his  title  is  hereby  quieted  in  and  to  the  following  de- 
scribed premises  situated  in  the  Township  of  Burns,  Shiawassee  County, 
Michigan,  and  described  as  follows,  to-wit: 

Beginning  on  the  west  line  of  Saginaw  Street,  and  75  links  south 
of  the  southeast  corner  of  lot  No.  4,  block  22,  Village  of  Byron;  thence 


R  94]  REMEDYING   DEFECTS  IN  THE  TITLE  223 

south  1.25  chains;  thence  east  75  links  to  center  of  Saginaw  Street;  thence 
south  21  degrees  45  minutes  east  on  center  line  of  Pontiac  and  Grand 
River  Road  6.56  chains;  then  south  89  degrees  30  minutes  west,  6.96 
chains  to  east  bank  of  Shiawassee  River;  thence  north  4  degrees  west, 
on  the  right  bank  of  said  river,  7.3175  chains  to  a  point  75  links  south 
of  the  southwest  corner  of  said  lot  No.  4,  block  22;  thence  easterly 
parallel  south  line  of  said  lot  No.  4,  3.60  chains  to  place  of  beginning, 
containing  4.43  acres,  more  or  less. 

It  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff  has  a 
right  of  flowage  and  the  right  to  flow  the  lands  hereinafter  described, 
as  an  appurtenance  to  his  mill  property,  upon  the  premises  above  de- 
scribed, with  a  nine  foot  permanent  head  of  water,  to  be  measured  by 
taking  the  vertical  measurement  from  the  bottom  of  the  tail-water  to  the 
crest  of  the  water  at  the  head  of  the  mill-race,  and  the  right  to  increase 
said  head  one  foot  more,  to  be  measured  in  the  same  manner,  making  a 
ten-foot  head,  provided  the  plaintiff  and  his  grantees  shall  protect  and 
save  harmless  from  all  injury  all  the  abutting  owners  of  land  adjoining 
or  being  west  of  and  below  the  mill  dam  of  plaintiff  as  now  constructed 
which  may  be  occasioned  by  the  rise  of  the  additional  foot  of  water  in 
making  such  ten-foot  head. 

Said  premises  which  said  plaintiff  has  the  right  to  flow  for  the  purpose 
of  his  aforesaid  mill  with  the  head  of  water  above  set  forth,  are  described 
as  follows: 

All  the  lands  and  premises  of  the  above-named  defendants  and  any  and 
all  of  them  upon  sections  thirteen  (13)  and  twenty-four  (24)  of  the 
Township  of  Burns,  Shiawassee  County,  Michigan,  which  will  be  cov- 
ered by  the  water  as  maintained,  with  the  head  of  water  above  described, 
by  the  dam  the  above-named  plaintiff  now  has,  situated  upon  said  section 
24,  in  the  Township  of  Burns  aforesaid. 

It  is  further  ordered,  adjudged  and  decreed  that  the  above-named 
defendants  owning  premises  abutting  upon  the  mill  pond  maintained  by 
the  above-named  plaintiff  upon  section  thirteen  (13)  and  twenty-four  (24) 
of  the  Township  of  Burns,  Shiawassee  County,  Michigan,  are  the  owners 
of  the  premises  covered  by  the  water  of  said  pond  above  referred  to, 
and  of  the  land  under  the  water,  and  that  their  premises  extend  to  the 
thread  of  the  stream  of  the  Shiawassee  River. 

It  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff  6hall 
have  an  easement  in  the  nature  of  a  right-of-way  over  the  south  ten 
feet  of  a  piece  of  land  extending  from  the  Pontiac  and  Grand  River  Road 
to  the  Byron  mill  pond,  so-called,  and  along  said  pond  at  the  east  side 
of  said  dam,  being  ten  feet  in  width  and  about  eighteen  rods  long;  to  be 
used  for  erecting,  maintaining  and  repairing  said  dam  and  the  banks  of 
said  mill  pond,  provided  the  plaintiff  in  using  the  same  does  as  little 
damage  as  possible  to  the  freehold;  the  land  being  more  particularly 
described  as  bounded  on  the  south  by  David  Campbell's  land,  on  the 
east  by  the  Byron  mill  pond,  on  the  north  by  the  east  branch  of  the 


224  THE  LAW  0F  LAND  CONTRACTS  [§  94 

Shiawassee  River,  or  what  has  been  known  as  the  saw-mill  race,  on  the 
west  by  the  Grand  River  Road,  and  situated  on  section  24  in  the  afore- 
said Village  of  Byron,  Michigan. 

It  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff's  right 
of  flowage  in  the  premises  above  described  as  aforesaid,  for  that  pur- 
pose, and  easements  above  referred  to,  are  hereby  quieted  in  the  plaintiff 
for  the  purposes  aforesaid. 

All  questions  in  regard  to  the  repair,  erection  construction  or  main- 
tenance of  the  bridge  upon  the  Pontiac  and  Grand  River  Road  over 
the  mill  race,  are  hereby  reserved  from  the  effect  of  this  decree. 

This  decree  shall  be  without  costs  to  either  the  plaintiff  or  the  de- 
fendants. SELDEN  S.  MINER, 

Circuit  Judge. 

(h)  Authorities  Cited  by  Plaintiff— 

BRIEF  FOR  PLAINTIFF 

Two  questions  are  raised  by  this  appeal: 

(a)  The  ownership  of  the  land  under  the  pond. 

(b)  The  construction  and  maintenance  of  the  bridge  over  the  mill 
race. 

The  rules  of  law  relating  to  riparian  rights  are  established  in  this 
state  by: 

Hartz  v.  Railway  Co.,  153  Mich.  33;  4th  Ency.  of  Law  (2nd  Ed.)  836-837. 
A  description  in  a  conveyance  of  land  describing  the  land  as  running  to 
a  stake  on  the  bank  of  a  mill  pond,  conveys  the  land  up  to  the  stake  and 
no  further. 

Leinbeck  v.  Nye  (Ohio),  24  N.  E.  686;  Brophy  v.  Richeson  (Ind.)  36  N. 
E.  424;  Eddy  v.  St.  Mars  (Vt.)  28  Am.  Rep.  695;  Carleton  v.  Cleveland 
(Me.)  92  Atl.  110.  Deeds  which  described  the  premises  as  running  "to 
the  edge  of  the  pond,"  and  as  being  bounded  "on  the  edge  of  the  pond," 
in  the  absence  of  any  mention  of  the  pond  or  of  rights  in  its  waters,  or 
any  other  statement  showing  a  wider  intent,  passed  title  only  to  the 
low  water  mark  of  the  pond. 

Lynfield  v.  Peabody,  supra.  By  Statute  in  1855,  the  legislature  required 
that  mill  owners  construct  and  maintain  bridges  across  their  races  when 
the  race  was  constructed  subsequent  to  the  formation  of  the  highway. 
Public  Acts  of  1855,  No.  149. 

This  court  has  held  that  this  statute  merely  recognized  a  duty  existing 
at  common  law,  and  that  the  statute  did  not  impose  any  new  duty  but 
only  gave  a  sufficient  remedy  for  neglect  of  a  duty  before  existing. 

Merrill  v.  Kalamazoo,  35  Mich.  211.  In  1909  a  new  act  was  enacted  in 
which  the  act  of  1855  above  referred  to  was  incorporated  verbatim  as 
amended  by  Act  65  of  the  Public  Acts  of  1875,  page  97.  In  1915  an  act 
was  enacted  repealing  certain  obsolete  and  inoperative  laws,  and  among 
the  acts  so  repealed  was  the  above  Act  of  1855,  No.  149.  The  act  of 
1909  so  far  as  it  relates  to  the  Act  of  1855,  as  amended,  must  be  con- 
strued as  a  combination  of  the  act  of  1855,  and  not  as  a  new  enactment. 


§  94]  REMEDYING   DEFECTS  IN  THE  TITLE  225 

26  Ency.  of  Law  (2nd  Ed.)  733-734.  That  being  the  case,  the  repeal 
of  the  original  statute,  makes  the  entire  law  in  that  respect  cease  to 
exist,  and  if  the  Act  of  1855,  as  amended,  was  obsolete  and  inoperative 
the  same  provisions  in  the  revisions  of  1909  are  also  obsolete  and  inop- 
erative. 

26  Ency.  of  Law  (2nd  Ed.)  737.  If  this  statute  is  obsolete  and  inop- 
erative, surely  the  common  law  must  be  equally  obsolete  and  inoperative. 
There  is  therefore  no  duty  or  obligation  upon  the  plaintiff  in  this  case 
to  construct  and  maintain  a  bridge  across  the  race  in  question  and  that 
the  court  was  powerless  to  declare  any  such  duty  or  obligation.  Rail- 
road Co.  v.  Read,  16  Wal.  (U.  S.)  270;  Camden  v.  Allen,  26  N.  J.  L.  398; 
Pratt  v.  Short,  79  N.  Y.  442. 

(i)  Authorities  Cited  by  Defendants.  Brief  for  Defendants. — In  Michi- 
gan the  common  law  prevails  and  the  rule  is  sustained  by  an  unbroken 
line  of  authorities  that  a  grant  of  land  bounded  by  a  stream,  whether 
navigable  in  fact  or  not,  carried  with  it  the  bed  of  the  stream,  to  the 
center  of  the  thread  thereof.  Lorman  v.  Benson,  8  Mich.  18;  Butler  v. 
Railroad  Co.,  85  Mich.  246. 

The  basic  principles  of  law  governing  the  doctrine  of  riparian  owner- 
ship is  laid  down  in,  Hale,  De  Jure  Maris,  Chap.  1;  King  v.  Warton,  Holt. 
499;  Lord  v.  Sydney  Commrs.,  12  Moore,  P.  6. 

The  rule  applies  to  a  mill  pond  as  well  as  a  natural  stream,  and  such 
words  as  "to  a  stake  on  the  bank"  does  not  constitute  any  limitation. 
Hartz  v.  Ry.  Co.,  155  Mich.  337;  Mansur  v.  Blake,  63  Me.  38;  Harrison  v. 
Keene,  3  Me.  474;  Taylor  v.  Blake,  64  N.  H.  392;  Van  Buren  v.  Baker, 
12  N.  Y.  S.  R.  209. 

In  Luce  v.  Carley,  24  Wend.  451  (N.  Y.),  the  boundary  ran  "to  a  hem- 
lock stake  standing  on  the  east  bank  of  the  river,"  and  the  court  held  that 
where  the  grant  is  so  framed  as  to  touch  the  water  of  the  river,  and 
then  parties  do  not  expressly  except  the  river,  one-half  the  bed  of  the 
stream  is  included  by  operation  of  law. 

The  reservation  must  be  expressed  and  not  implied.  Butler  v.  Railroad, 
85  Mich.  246. 

The  law  of  1855  as  to  maintenance  of  bridges,  was  superseded  and  re- 
pealed by  the  passage  of  the  revision  act  of  1909,  and  its  technical  repeal 
in  1915,  was  a  mere  formality,  the  act  of  1909  is  still  in  force  under  which 
we  claim  relief. 

"Where  a  subsequent  statute  covers  the  whole  ground  occupied  by  an 
earlier  statute,  it  repeals  by  implication  the  former  statute,  though  there  be 
no  repugnance."      Shannon  v.  People,  5  Mich.  85. 


CHAPTER  VII 

SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 

RELIEF,  WHEN  GRANTED— WHEN  DENIED 

GENERAL  PRINCIPLES 

§    95.  The  Remedy  Discretionary. 

§    96.  Specific  Performance  General  Principles. 

§    97.  Application  of  the  Remedy. 

§    98.  Same  Subject — Continued. 

§    99.  Specific  Performance  of  an  Agreement  to  Execute  a  Land  Contract. 

§  100.  Predated  Agreements  Executed  on  Sunday. 

§  101.  Intoxication  as  Grounds  for  Refusal  Specific  Performance  of  Con- 
tracts. 

§  102.  Relief  Where  Wife  Fails  to  Join  in  Contract. 

§  103.  Relief  Refused  Even  if  Facts  Would  Not  Warrant  Rescission. 

§  104.  Specific  Performance  by  Vendor  Against  Vendee. 

§  105.  Inadequacy  of  Consideration  Grounds  for  Denial  of  Relief. 

§  106.  No  Relief  if  Contract  Is  Unfair,  Harsh,  Oppressive  or  Inequitable. 

§  107.  Where  Non-Enforceable  Agreement  Performed  by  Plaintiff. 

§  108.  Specific  Performance  of  Option  Contracts. 

§  109.  No  Relief  When  Performance  Would  Be  Nugatory  or  Decree  Im- 
possible to  Enforce. 

§  110.  What  Mistakes  Warrant  Denial  of  Specific  Performance. 

§  111.  Effects  of  First  Substantial  Breach. 

§  112.  Mutuality  of  the  Remedy — Exceptions. 

§  113.  Relief  Granted — Illustrative  Cases. 

§  114.  Illustrative  Cases — Relief  Denied. 

§  95.  The  Remedy  Discretionary. — Specific  performance  of 
land  contracts  is  not  a  remedy  of  right,  but  rests  in  the  discre- 
tion of  the  court,  but  such  discretion  is  a  judicial  one  and  can- 
not be  exercised  arbitrarily  or  captiously  and  must  be  based 
upon  facts  proven  in  the  case  by  competent  testimony,1  and 

1.    Remedy      Discretionary.  —  Al-  cific  performance  in  this  case.  Wat- 

though  the  remedy  of  specific  per-  kins  v.  Minor,  214  Mich.  380. 

formance  is  not  a  matter  of  strict  While    the    remedy    by    specific 

legal  right,  but  rests  in  the  sound  performance    is    not    a    remedy    of 

discretion  of  the  court,  held  under  right,    and    the    granting   or   refus- 

the   evidence   that   the   established  ing  thereof  must  rest  in  discretion, 

principles    of    equity    require    spe-  the  discretion  to  be  exercised  is  a 


96] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


227 


in  all  cases  is  controlled  by  the  well  established  principles  of 
equity.  Therefore,  where  the  contract  is  certain  in  its  terms 
and  for  a  valuable  consideration  and  is  capable  of  being  en- 
forced without  hardship  to  either  party,  the  courts  will  decree 
specific  performance  as  a  matter  of  course  just  as  freely  and 
readily  as  a  court  of  law  will  award  a  judgment  of  damages 
for  breach  of  contract.2 

§  96.  Specific  Performance  General  Principles. — Specific  per- 
formance is  the  common  equitable  remedy  for  the  enforcement 
of  contracts  for  the  sale  of  real  estate.  While  in  other  classes 
of  contracts  the  remedy  of  specific  performance  is  based  upon 
the  inadequacy  of  the  legal  remedy  and  requires  a  showing 


judicial  and  not  an  arbitrary  one, 
and  increase  in  value  standing 
alone  is  not  sufficient  to  defeat  the 
remedy  by  specific  performance  of 
the  contract  to  convey  land.  Bailer 
v.  Spivack,  213   Mich.  436. 

Kerwin  Machine  Co.  v.  Baker, 
199  Mich.  122.  It  is  not  a  matter 
of  course  to  decree  specific  per- 
formance of  contracts,  for  it  re- 
quires a  sound  discretion  in  view 
of  all  the  circumstances,  and  this 
discretion  must  not  be  arbitrary 
and  capricious,  but  must  be  regu- 
lated upon  grounds  that  will  make 
it  judicial.  Friend  v.  Smith,  191 
Mich.  99. 

The  jurisdiction  of  a  court  of 
equity  to  decree  the  specific  per- 
formance of  contracts  is  not  a  mat- 
ter of  right,  but  is  within  the  sound 
discretion  of  the  court  under  the 
circumstances  of  each  case;  and 
specific  performance  of  a  land  con- 
tract, made  by  a  husband  while  he 
held  an  option  on  the  land,  was  de- 
nied where  the  wife  was  not  a 
party  to  such  contract.  Solomon 
v.  Shewitz,  185  Mich.  620. 

Remedy  by  specific  performance 
is  not  a  remedy  of  right,  but  rests 
in  the  sound  discretion  of  the  court 


and  plaintiff's  case  must  be  clear 
before  that  discretion  is  moved. 
Ickler   v.    Muellen,    196    Mich.    616. 

The  granting  of  relief  by  decree- 
ing specific  performance  of  a  con- 
tract is  not  a  remedy  of  right,  but 
rests,  and  should  rest,  in  sound 
judicial  discretion.  Nowicki  v.  Ka- 
pelczak,  195  Mich.   678. 

In  McMurtrie  v.  Benriette,  Har. 
Ch.  (Mich.)  124,  it  was  held  that  it 
is  not  a  matter  of  course  to  de- 
cree specific  performance  of  con- 
tracts. It  requires  a  sound  dis- 
cretion, upon  a  view  of  all  the  cir- 
cumstances; and  this  discretion 
must  not  be  arbitrary  and  capri- 
cious but  must  be  regulated  upon 
grounds  that  will  make  it  judi- 
cial. Here  the  contract  appears 
to  be  certain  and  definite,  and  has 
been  performed  by  complainants. 
Friend  v.  Smith,  191  Mich.  105. 

For  an  extended  discussion  of  the 
discretionary  powers  of  the  court 
in  actions  for  specific  performance 
see  Offcutt  v.  Offcutt,  12  L.  R.  A.  U. 
S.  232,  67  Atl.  138;  Spengler  v. 
Sonnenborg,  88  Ohio  St.  192,  52  L. 
R.  A.,  N.  S.  510. 

2.  Pomeroy  Eq.  Jur.  Sec.  2184. 


228 


THE  LAW  OF  LAND  CONTRACTS 


[§96 


that  the  legal  remedy  is  inadequate  where  land  or  any  estate 
therein  is  the  subject  matter  of  the  agreement,  the  inadequacy 
of  the  legal  remedy  is  well  settled  and  the  equitable  jurisdic- 
tion is  firmly  established.3 

In  order  to  maintain  an  action  for  the  specific  performance 
of  a  land  contract,  such  contract  must  possess  the  following 
requisites: 

(a)  It  must  be  valid  and  legal  and  for  a  lawful  consideration. 
If  illegal  or  against  public  policy  it  will  not  be  enforced.4 

(b)  It  must  be  certain  in  its  terms  and  conditions;  one  that 
is  vague  and  uncertain  in  its  terms  cannot  be  enforced.6 


3.  Pomeroy's  Equity  Jurispru- 
dence, Sec.  1400,  2nd  Ed. 

4.  Where  the  contract  is  made  on 
Sunday  even  though  dated  some 
other  day,  the  contract  is  unen- 
forceable. Silver  v.  Shulman,  213 
Mich.  211. 

If  the  agreement  is  made  on  Sun- 
day, it  cannot  be  ratified  or  en 
forced.  Berston  v.  Gilbert,  180 
Mich.  638;  Acme  Electrical  Co.  v. 
Van  Derbeck,  127  Mich.  341  (89  Am. 
St.  176);  Aspanwell  v.  Van  Der- 
beck, 127  Mich.  341;  McClurken  v. 
Decrick,  33  111.  349;  Anderson  v. 
Carkins,  135  U.  S.  4831;  Carley  v. 
Gltchell,  105  Mich.  38. 

5.  In  order  that  a  court  of  equity 
shall  exercise  its  power  to  decree 
a  specific  execution  where  there 
has  been  a  part  performance,  the 
contract  itself  must  be  clear,  cer- 
tain, and  unambiguous  in  its  terms, 
and  must  either  be  admitted  by  the 
pleadings,  or  proved  with  a  reason- 
able degree  of  certainty  to  the 
satisfaction  of  the  court.  If,  there- 
fore, upon  all  the  evidence  given 
by  both  parties,  the  court  is  left 
in  doubt  as  to  the  entire  contract 
or  even  as  to  any  of  its  material 
terms,  it  will  not  grant  the  remedy 
although  a  partial  performance  of 


something  has  been  sufficiently 
proved.  Louisa  A.  Green  v.  Josiah 
W.  Begole,  70  Mich.  602. 

"Where  the  consideration  of  a 
contract  for  the  sale  of  pine  land 
consisted  not  only  of  a  money  pay- 
ment but  of  a  joint  arrangement 
between  the  parties  for  lumbering 
the  land,  its  specific  performance 
could  not  be  enforced  in  the  ab- 
sence of  any  agreement  or  usage 
as  to  the  time  to  be  allowed  for  the 
lumbering;  and  the  contract  is  not 
severable,  no  portion  of  it  could  be 
specifically   enforced. 

Courts  cannot  perfect  or  enforce 
contracts  from  which  essential  de- 
tails are  omitted."  Samuel  G.  M. 
Gates  et  al.  v.  Henry  Gamble,  53 
Mich.  181. 

"Contracts  that  are  so  vague  in 
their  terms  that  no  one  but  the 
parties  can  say  how  great  an  ex- 
penditure they  contemplate,  can- 
not be  specifically  enforced  by  the 
courts,  but  must  rest  on  the  honor 
or  good  faith  of  the  parties." 

"A  bill  for  specific  performance 
will  not  lie  and  has  nothing  to  lie 
on,  where  a  son  who  had  orally 
agreed  to  support  his  parents  in 
consideration  of  his  being  entitled 
to  a  conveyance  from  them  of  what- 


§961 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


229 


(c)   It  must  not  be  within  the  statute  of  frauds  unless  partly 
performed.6 


ever  estate  he  might  acquire  out 
of  the  farm  profits  beyond  what 
they  owned  at  the  time,  had  all 
such  property  as  he  purchased  from 
time  to  time,  and  so  had  under 
this  control,  conveyed  to  his 
mother,  who  would  not  reconvey 
to  him  when  he  asked  her  to." 
Bumpus  v.  Bumpus,  53  Mich.  347. 

The  following  quotation  from 
Shodman  v.  Handy,  102,  382,  46  S. 
E.  380,  is  a  correct  statement  of  the 
essential  elements  required  of  a 
contract  before  the  courts  will  spe- 
cifically enforce  it: 

"These  elements,  conditions,  and 
incidents  as  collected  from  the 
cases,  are  the  following:  The  con- 
tract must  be  concluded,  certain, 
unambiguous,  mutual  and  upon  a 
valuable  consideration;  it  must  be 
perfectly  fair  in  all  its  parts;  free 
from  any  misrepresentation  or  mis- 
apprehension, fraud  or  mistake,  or 
hard  bargain;  and  its  performance 
not  oppressive  upon  the  defend- 
ant and  finally  it  must  be  capable 
of  specific  execution  through  a  de- 
cree of  the  court." 

Uncertainty  of  Contract  Barring 
Enforcement. — Where  there  was  no 
provision  in  the  contract  whereby 
plaintiff  agreed  to  purchase,  spe- 
cific performance  was  refused  for 
lack  of  mutuality.  Tattan  v.  Bry 
ant,  198  Mich.  515. 

Where  the  agreement  does  not 
contain  the  terms  or  time  of  per- 
formance not  sufficient  to  entitle 
plaintiff  to  specific  performance 
as  same  does  not  meet  the  require- 
ments of  the  statute  of  frauds.  Ro- 
senbaum  v.  Tysyka,  192  Mich.  457. 

Where   the   agreement   denes    not 


contain  time  of  performance,  same 
is  too  uncertain,  specific  perform- 
ance denied.  Nichols  v.  Burcham, 
177   Mich.   601. 

A  contract  for  an  exchange  of 
merchandise  for  other  property  by 
the  terms  of  which  the  undamaged 
goods  are  to  be  inventoried  and 
taken  at  cost  prices,  and  the  dam- 
aged goods  at  "prices  agreed  upon" 
is  uncertain  as  to  the  price  to  be 
paid  for  the  damaged  goods  and 
cannot  be  enforced.  Dayton  v. 
Stone,  111  Mich.  196. 

Where  the  agreement  refers  to 
another  agreement  without  speci- 
fying the  terms  of  such  agreement, 
it  is  too  uncertain  to  permit  spe- 
cific performance.  Webster  v. 
Brown,   57  Mich.  328. 

Where  the  receipt  specified  the 
purchase  price  but  failed  to  specify 
the  times  or  terms  of  payment,  was 
held  to  be  unsufficient  to  permit 
specific  performance  on  the  ground 
that  it  did  not  comply  with  the 
statute  of  frauds.  Maynard  v. 
Brown,  41  Mich.  298. 

6.  Contract  must  contain  essen- 
tials required  by  statute  of  frauds, 
except  in  those  cases  where  the 
courts  will  enforce  partly  per- 
formed verbal  contract. 

For  a  full  discussion  of  the  re- 
lief granted  in  this  class  of  cases, 
see  Chapter  II,  Sec.  21,  Ante. 

If  the  description  is  insufficient, 
the  courts  will  not  specifically  en- 
force the  contract.  Ebert  v.  Cul- 
len,  165  Mich.  75;  Wardell  v.  Will- 
iams, 62  Mich.  50;  Welch  v.  Whelp- 
ley,  62  Mich.  16;  Maynard  v.  Brown, 
41  Mich.  298;  Peckham  v.  Balch, 
49  Mich.  179 


230 


THE  LAW  OF  LAND  CONTRACTS 


[§96 


(d)  It  must  be  free  from  all  taint  of  fraud  or  deceit.7 

(e)  It  must,  as  a  general  rule,  be  mutual,  both  parties  equally 
bound,  although  there  are  important  exceptions  to  this  rule.8 

(f)  It  must  be  fair  and  just  and  free  from  fraud  or  surprise 
and  such  that  it  will  not  be  inequitable  to  enforce.9 

(g)  It  must  be  of  such  a  character  that  the  performance 
thereof  can  be  compelled  by  the  court.  Where  from  the  nature 
of  the  case  the  court  will  be  unable  to  compel  specific  perform- 
ance, it  will  not  attempt  to  do  so.10 

If  the  contract  for  the  sale  of  real  estate  meets  the  foregoing 
conditions  the  courts  will  specifically  enforce  it  as  a  matter  of 
course.  For  case  illustrating  the  rule,  see  other  sections  of  this 
work.11   See  Sec.  97-113-114  Post. 

§  97.  Applications  of  the  Remedy. — Specific  performance 
may  be  invoked  against  the  vendor  by  the  vendee  as  well  as 
by  the  vendee  against  the  vendor.12  For  the  mutual  exchange 
of  lands,  where  the  deeds  were  executed  and  placed  in  escrow, 
and  all  conditions  precedent  were  fulfilled,13  although  no  rea- 
son is  perceived  why,  the  other  essential  factors  being  present, 
a  contract  to  exchange  lands  could  not  be  compelled  at  the 
instance  of  either  party  by  specific  performance.    This  remedy 


7.  If  the  plaintiff  has  been  guilty 
of  fraud,  deceit,  or  overreaching, 
specific  performance  will  be  denied. 
Lake  Erie  Land  Co.  v.  Chilinski, 
197  Mich.  21;  Rust  v.  Conrod,  47 
Mich.  449;  Coryell  v.  Hotchkiss.  130 
Mich.  400. 

Of  if  the  contract  is  oppressive, 
Realty  Co.  v.  Shaffer,  176  Mich. 
639. 

8.  Hawley  v.  Sheldeon,  Harr.  Ch. 
420;  Wardell  v.  Williams,  62  Mich. 
50;  Maynard  v.  Brown,  41  Mich. 
298;  Chapman  v.  Morgan,  55  Mich. 
125;  McDonald  v.  Bewick,  51  Mich. 
80. 

9.  Hicks  v.  Turck,  86  Mich.  214 
Monro  v.  Edward,  86  Mich.  91 
Rathbone  v.  Groh,  137  Mich.  373 
Munch  v.   Schnable,  37  Mich.  166 


Chambers   v.    Livermore,   15   Mich. 
381;  Eames  v.  Eames,  16  Mich.  348. 

10.  Pingle  v.  Connor,  66  Mich. 
187;  Blancard  v.  Detroit  L.  &  L. 
R.  Co.,  31  Mich.  43;  Weed  v.  Tor- 
rey,  2  Doug.  Mich.  344;  Bourget  v. 
Monroe,  58  Mich.  563;  Buck  v. 
Smith,  29  Mich.  166;  Green  v.  Bay 
City  R.  Co.,  158  Mich.  436;  San- 
quirisce   v.   Benedetti,   1    Bar.    315. 

11.  See  Sec.  97,  113,  114,  Post. 

12.  Arthur  v.  Cheboygan,  156 
Mich.  152;  Loveridge  v.  Shurtz, 
111  Mich.  618;  Hicks  v.  Turck,  et 
al.,  72  Mich.  311;  Cole  v.  Cole 
Realty  Co.,  169  Mich.  347;  36  Cyc. 
686;  Pomeroy  Equity  Jur.  2  Ed. 
2169. 

13.  Bowman  v.  Gork,  106  Mich. 
163. 


§  97J  SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  231 

may  also  be  invoked  in  case  of  lands  lying  outside  of  the  state 
so  long  as  the  court  has  jurisdiction  of  the  person  of  the  de- 
fendant 14  and  could  order  the  proper  conveyances,  and  the 
same  principle  holds  true  in  compelling  specific  performance 
of  lands  lying  in  other  counties  from  where  the  court  is  sit- 
ting.15 Where  the  contract  in  writing  stipulated  that  the  ven- 
dee or  any  person  she  might  designate  within  a  certain  period 
would  be  entitled  to  a  deed  upon  payment  of  the  purchase  price, 
the  court  decreed  the  assignee  of  vendee  is  entitled  to  specific 
performance.16 

A  vendee  in  possession  under  a  land  contract  charges  a  pur- 
chaser from  the  vendor  with  notice  of  his  rights  under  the 
contract 17  and  specific  performance  cannot  be  had  against  the 
vendor  so  as  to  defeat  his  right. 

Where  the  premises  have  been  conveyed  to  a  bona  fide  pur- 
chaser before  the  hearing,  the  court  will  in  some  cases  enter  a 
decree  for  damages,  in  lieu  of  specific  performance.18  Where 
defendants  owning  a  fractional  interest  of  the  property  came 
into  ownership  of  all  after  signing  the  contract  for  such  frac- 
tional interest,  the  court  will  decree  specific  performance  of 
only  the  fractional  interest.19 

Frequently  in  connection  with  the  remedy  for  specific  per- 
formance, the  plaintiff  requests  other  important  relief  such  as 
— reformation  of  an  instrument  which  he  seeks  to  have  specifi- 
cally performed,  or  seeks  relief  from  forfeiture  of  a  land  con- 
tract, and  to  have  the  contract  specifically  performed,  as  a 
necessary  complement  to  the  relief  from  forfeiture,  or  in 
proper  cases,  all  three  remedies,  might  be  invoked  in  the  same 
action.20 

14.  Hull  v.   Turk,  72   Mich.   31.  19.  Wayne  v.  Beeman,  211  Mich. 

15.  Niemelta     v.     Teakkle.      210      36L 

Mich.  590.  20.  See   Chap.    12,   Post   reforma- 

16.  Craig  v.  Crossman,  209  Mich.      tion  of  instruments;    Lozon  v.   Mc- 
463  Kay,    203    Mich.    365,    where    relief 

from    forfeiture    granted    and    the 
contract    ordered    specifically    per- 
formed.   Likewise  John  v.  McNeal, 
18.  Morussa    v.    Timerowski,    204      167    Mich.    148;     Staces    Chancery 
Mich.  271.  Practice  Sees.   624   to  628. 


17.  Slatkin  v.  Schuman,  210  Mich 
513. 


232 


THE  LAW  OF  LAND  CONTRACTS 


[§97 


If  the  abstract  is  defective  the  vendee  may  waive  such  de- 
fect and  enforce  specific  performance.21 

Where  the  vendor  seeks  specific  performance  against  the 
vendee,  he  may  pray  for  and  obtain  a  decree  for  a  vendor's 
lien  on  the  land  until  such  time  as  the  payment  of  the  purchase 
price.22 

In  a  note  to  a  subsequent  section  we  have  appended  a  list  of 
the  Michigan  cases  where  relief  of  specific  performance  has 
been  granted  23  and  also  a  note  to  another  section  where  relief 
has  been  denied.24 

§98.  Applications  of  the  Remedy  (continued). — Laches  on 
the  part  of  the  plaintiff  in  bringing  his  action  may  be  suffi- 
cient to  defeat  the  action.  But  the  rule  is  otherwise  where  the 
party  seeking  relief  is  a  minor  or  incompetent  person.25  Where 
the  delay  in  taking  action  does  not  injure  the  other  party  and 
is  warranted  by  the  circumstances  it  will  be  no  defense.26  If 
the  plaintiff  has  been  guilty  of  overreaching  or  has  not  dis- 
closed facts  which  the  situation  of  the  parties  made  it  incum- 
bent upon  him  to  disclose  —  specific  performance  will  be 
denied.27  Where  the  contract  is  ambiguous  in  its  terms,  the 
courts  will  decline  to  enforce  it.28  In  the  accompanying  note 
we  have  collected  the  Michigan  cases  where  the  relief  of  specific 
performance  has  been  denied.29 

§  99.  Specific  Performance  of  an  Agreement  to  Execute  a 
Land  Contract. — Where  the  parties  enter  into  a  preliminary 
agreement  to  execute  a  land  contract  at  some  subsequent  time, 


21.  Ogooshevitz  v.  Wangas,  203 
Mich.  666;  Anderson  v.  Kennedy, 
51  Mich.  467. 


22.  Loveridge     v. 
Mich.    618. 


Schurtz,     111 


23.  Sec.  113,  Post. 

24.  Sec.  114,  Post. 

25.  Staces  Chancery  Practice, 
Sec.  626;  Dragoo  v.  Dragoo,  50  Mich. 
573;  Chandler  v.  McKinney,  6  Mich. 
322. 

26.  Colharin  v.  Knoch,  133  Mich 
335. 


27.  Wayne  v.  Beeman,  211  Mich. 
361.  Where  plaintiff,  a  shrewd 
business  man  did  not  inform  elderly 
ladies  that  two  of  three  owners 
could    not    transfer    the    property. 

Lake  Erie  Land  Co.  v.  Chylinski, 
197  Mich.  214.  Where  a  shrewd 
and  irresponsible  promoter  secured 
a  contract  from  people  of  foreign 
extraction  which  permitted  of  great 
delay  in  payments. 

28.  Slatkin  v.  Schuman,  210  Mich. 
513. 

29.  See  Sec.  114,  Post. 


§  100]        SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  233 

the  court  may  decree  specific  performance  of  such  preliminary 
agreement,30  but  before  the  purchaser  seeks  to  invoke  this 
remedy,  he  should  examine  carefully  his  preliminary  agree- 
ment to  ascertain  whether  or  not  same  contains  a  sufficient 
description  of  the  terms  of  the  land  contract  to  fully  protect 
him.  For  instance,  if  the  agreement  is  silent  as  to  the  date 
when  possession  of  the  real  estate  is  to  be  given,  while  it  would 
be  possible,  if  the  other  terms  were  sufficient,  for  the  purchaser 
to  enforce  specific  performance  of  such  preliminary  agree- 
ment, he,  nevertheless,  could  not  obtain  possession  of  the 
property  until  he  had  paid  the  purchase  price  in  full,  as  the 
law  presumes  that  the  vendor  is  entitled  to  possession  until  the 
full  purchase  price  shall  have  been  paid,  unless  the  contract 
specifies  possession  shall  be  given  at  an  earlier  date.31  Few 
preliminary  agreements,  to  the  considerable  disadvantage  of 
the  vendor,  contain  clauses  permitting  forfeiture  for  the  non- 
payment of  the  purchase  price,  or  for  failure  to  pay  taxes  or 
special  assessments,  or  contain  any  mention  as  to  whose  duty 
it  will  be  to  keep  the  premises  insured,  and  in  the  absence  of 
such  provisions  in  the  preliminary  agreement,  it  is  very  doubt- 
ful if  the  vendor  could  insist  that  such  clauses  be  embodied  in 
the  land  contract  itself.  All  of  these  considerations  should  be 
given  due  weight  by  the  practitioner  before  invoking  the 
remedy  of  specific  performance. 

§  100.  Pre-Dated  Agreements  Executed  on  Sunday. — Occa- 
sionally preliminary  agreements  for  the  sale  of  land  contracts 
are  executed  on  Sunday  and  dated  some  other  day,  the  parties 
in  such  case  being  under  the  impression  that  changing  the 
date  cures  the  infirmity  of  such  agreements  having  been  made 
on  Sunday. 

It  is  well  settled  that  such  agreements  are  absolutely  void 
and  cannot  be  specifically  enforced  or  made  the  basis  of  an 
action  for  damages.  Moreover,  such  agreements  cannot  be 
ratified  unless  followed  by  such  acts  of  part  performance  as 
would  raise  strong  equities  between  the  parties.32 

30.  Brin  v.  Michalski.  188  Mich.  400;  Dreuse  v.  Wheeler,  22  Mich. 
400;  Ogooshevitz  v.  Arnold,  197  439;  Gault  v.  Stormont.  51  Mich. 
Mich.   203.  636;  Way  v.  Root,  174  Mich.  41S. 

31.  Brin  v.   Michalski,    18S    Mich.  32.  Silver  v.   Shulman,  213   Mich. 


234 


THE  LAW  OF  LAND  CONTRACTS 


[§101 


§  101.  Intoxication  as  Grounds  for  Refusal  Specific  Perform- 
ance of  Contracts. — It  is  a  fundamental  of  the  law  that  before 
there  can  be  a  valid  contract  there  must  be  a  meeting  of  the 
minds  of  the  parties  to  such  contract,  therefore,  if  the  defend- 
ant at  the  time  of  the  execution  of  the  alleged  contract  sued 
upon  was  in  such  an  extreme  state  of  intoxication  that  he  did 
not  comprehend  his  acts,  equity  will  afford  him  complete  relief 
not  only  as  to  specific  performance,  but  as  to  rescission  as 
well.33 

Ordinary  intoxication  in  a  suit  for  specific  performance  has 
the  effect  of  neutralizing  the  equities  so  that  the  court  will 
not  act  on  either  side.34  Intoxication  which  merely  exhilarates 
and  does  not  materially  affect  the  understanding  is  not  grounds 
for  refusing  to  specifically  perform  the  contract.35  There  are 
a  line  of  cases  holding  that  intoxication  unless  induced  by  the 
contrivance  of  the  plaintiff  is  not  a  defense  to  specific  perform- 
ance, but  these  cases  and  this  rule  is  not  in  accordance  with  the 
weight  of  authority.36 

§  102.  Relief  Where  Wife  Fails  to  Join  in  Contract. — Where 
the  wife  fails  to  join  in  the  execution  of  the  land  contract  with 
her  husband,  specific  performance  cannot  be  compelled  as  to 
her  dower  interest,  and  she  is  not  even  a  proper  party  defend- 
ant.37 In  such  cases  it  has  been  held  that  specific  performance 
will  be  granted,  against  the  husband  for  a  conveyance  of  his 
interest  in  the  real  estate,  and  deducting  from  the  purchase 
price  compensation  for  the  present  value  of  the  wife's  contin- 
gent right  of  dower.38    In  many  of  the  states  a  different  rule 


211;  Aspell  v.  Hosbein,  98  Mich. 
117;  Acme  Electrical  Co.  v.  Van 
Derbeke,  127  Mich.  341  (89  Am.  St. 
Rep.  476) ;  Berston  v.  Gilbert,  180 
Mich.  638. 

33.  Pomeroy  Equity  Jur.,  Sec. 
2210;  Pomeroy  Equity  Jur.,  Sec 
949. 

34.  Cragg  v.  Holmes,  18  Ves.  14 
note  12;  Pomeroy  Eq.  Jur.,  2nd 
Ed.,   Sec.  2210. 

35.  See  Pomeroy  Eq.  Jur.  Supra; 


Corrigan   v.   Rolph,   265   111.   107   N. 
E.  155. 

36.  Elliott  on  Contracts,  Sec. 
2296. 

37.  Solomon  v.  Shewitz,  185  Mich. 
631;  Weed  v.  Terry,  A  Doug. 
(Mich.),  344  (45  Am.  Dec.  257); 
Richmond  v.  Robinson,  12  Mich. 
193;  Buchoz  v.  Walker,  19  Mich. 
224;  Phillips  v.  Stauch,  20  Mich. 
369. 

38.  In  Walker  v.  Kelly,  91  Mich. 


8  1041        SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  235 

prevails  and  equity  will  not  decree  specific  performance  against 
a  vendor,  where  the  wife  of  such  vendor  refuses  to  convey  her 
inchoate  dower  interest  in  the  land  which  he  has  contracted 
to  sell  on  the  ground  that  compulsion  upon  the  husband  would 
tend  to  cause  him  to  procure  his  wife's  conveyance  of  dower 
against  her  will.39 

§  103.  Relief  Refused  Even  If  Facts  Would  Not  Warrant  Re- 
scission.— The  remedy  of  specific  performance  being  a  remedy 
of  grace  and  not  of  strict  legal  right,  is  frequently  denied, 
where  the  evidence  for  the  defendant  is  not  such  as  would  war- 
rant a  rescission  of  the  contract.  In  other  words  the  defendant 
to  defeat  the  action  is  not  required  to  show  such  fraud,  mistake, 
or  other  facts  in  defense  as  would  warrant  the  rescission  of  the 
contract.  It  will  be  sufficient  as  a  defense  if  he  shows  the 
bargain  oppressive,  inequitable  or  unconscionable.40 

§  104.  Specific  Performance  by  Vendor  Against  Vendee. — 

Specific  performance  will  be  granted  to  a  vendor  of  land  as 
freely  as  in  favor  of  a  vendee,  though  the  relief  sought  is  only 
a  recovery  of  the  purchase  price.  This  form  of  relief  is  granted 
to  the  vendor  upon  the  theory  that  where  an  equitable  right 
has  been  recognized  in  the  vendee,  such  as  specific  perform- 
ance, a  corresponding  remedial  right  should  be  admitted  in 
favor  of  the  vendor.41 

This  principle  has  been  recognized  in  Michigan  and  the  relief 
of  specific  performance  granted  against  the  vendees  where  they 
have  taken  possession  of  the  real  estate  even  though  the  land 
was  situated  outside  of  the  state,42  and  in  another  case  where 
the  vendee  had  made  a  partial  payment  on  the  real  estate  and 
had  taken  possession  and  made  certain  changes  in  the  premises, 
the  court  granted  the  vendor  specific  performance.43 

212    (51    N.    W.    934),    specific    per-  40.  Rust  v.  Conrad,  47  Mich.  449- 

formance,    subject    to    the    dower  454  (1  N.  W.  265,  41  Am.  Rep.  720); 

rights,  was  given,  where  the  wife  Chicago,  Etc.,  R.  Co.  v.   Lane,  150 

was  not  a   party   to  the  contract;  Mich.  162   (113  N.  W.  22). 

the  decree  providing  for  compensa-  41    pomeroy's     Equity     Jurispru- 

tion    to    complainant    for    present  dence,   2nd   Ed.    Sec.   2169. 

value  of  such   contingent  right  of  42    Hicks    v     Turck,    et     al.,    7J 

dower-  Mich.  311. 

39.  Pomeroy  Eq.  Jur.,  2  Ed.  2257.  43.  The  contract  in  this  case  was: 


236 


THE  LAW  OF  LAND  CONTRACTS 


[§105 


§  105.  Inadequacy  of  Consideration  Grounds  for  Denial  of 
Relief. — It  is  a  general  principle  of  equity  that  mere  inade- 
quacy of  consideration  alone  and  without  other  facts  and  cir- 
cumstances present  will  not  warrant  the  court  in  refusing 
specific  performance;  an  examination  of  the  cases,  however, 
reveal  that  this  principle  is  rarely  applied,  unless  the  inade- 
quacy is  so  gross  as  to  shock  the  conscience  of  court.44  In  Mich- 
igan the  rule  is  that,  mere  inadequacy  of  consideration  alone 
not  accompanied  by  any  other  elements  of  bad  faith,  is  not  suf- 
ficient ground  for  refusing  to  specifically  enforce  a  contract,46 


"Hamburg,  Michigan,  June  6  (there 
is  a  six  and  seven  over  it),  1917. 

"Received  of  Ed.  Gardner  and 
Delia  Gardner  One  Hundred  Dol- 
lars ($100)  on  purchase  price  of 
house  and  lot  in  Hamburg  village. 
Balance  of  Eighteen  Hundred  dol- 
lars ($1,800)  to  be  paid  and  deed 
given  in  five  days.    A.  H.  Pearson." 

Under  this  contract  the  defend- 
ants entered  into  possession.  Said 
the  court  in  its  opinion,  "It  is  con- 
ceded by  counsel  for  plaintiff  that 
the  written  evidence  of  the  con- 
tract is  insufficient  under  the  stat- 
ute of  frauds.  The  only  question 
involved  is  whether  the  defendants 
by  their  acts  in  making  partial 
payment,  taking  possession,  reap- 
ing the  fruits  of  the  garden  and 
changing  the  character  of  the  prem- 
ises have  done  sufficient  to  take 
the  case  out  of  the  statute  and  to 
equitably  entitle  plaintiff  to  the  de- 
cree for  specific  performance  which 
was  awarded  by  the  court  below. 
Partial  payment  of  the  purchase 
price  alone  is  not  sufficient  to  take 
the  case  out  of  the  statute.  Pos- 
session alone  is  insufficient,  but 
where  there  is  partial  payment  and 
possession  accompanied  by  acts  of 
ownership  of  the  vendee  changing 
the  character  of  the  freehold,  and 


lessening  its  value,  a  court  of 
equity  may  award  a  decree  for  spe- 
cific performance."  Cole  v.  Cole 
Realty  Co.,  169  Mich.  347. 

"It  is  true  that  in  the  case  first 
cited  the  action  was  brought  by  the 
vendee  rather  than  the  vendor,  but 
it  is  well  settled  that  specific  per- 
formance is  granted  in  favor  of 
the  vendor  of  land  as  freely  as  in 
favor  of  the  vendee,  though  the  re- 
lief actually  obtained  by  him  is 
the  recovery  of  money,  the  pur- 
chase price."  The  rule  is  stated 
in  36  Cyc.  P.  686,  as  follows: 

"The  vendor  or  lessor  may  have 
specific  performance  of  a  contract 
which  has  been  performed.  This 
is  in  part  because  the  delivery  of 
possession  by  him  to  the  vendor 
involves  a  change  of  condition  on 
his  part  as  well  as  on  the  part 
of  the  vendee,  and  point  to  a  con- 
tract concerning  the  land;  chiefly 
because,  in  cases  where  the  remedy 
is  available  to  the  vendee  it  should, 
on  the  ground  of  mutuality,  be 
available  to  the  vendor  likewise." 
Arthur  v.  Cheyboygan,  156  Mich. 
152;  Leveredge  v.  Shurtz,  111  Mich. 
618. 

44.  Pomeroy  on  Equity,  2nd  Ed., 
Sec.  2212  and  cases  cited. 

45.  Van    Norsdal    v.    Smith,    141 


§106] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


237 


unless  the  inadequacy  of  the  consideration  is  such  as  to  shock 
the  conscience  of  the  court. 

Where  the  inadequacy  of  consideration,  however,  is  for  a 
substantial  amount,  the  courts  give  much  weight  to  this  fact 
and  is  of  itself  indicative  of  improvidence,  overreaching  or 
sharp  practice  and  it  requires  but  slight  evidence  of  the  pres- 
ence of  these  latter  factors  to  move  the  court  to  deny  the 
relief.46 

§  106.  No  Relief  If  Contract  Is  Unfair,  Harsh,  Oppressive  or 
Inequitable. — When  the  plaintiff  obtains  the  contract  under 
such  conditions  that  equity  regards  the  contract  unfair  and 
its  enforcement  a  hardship  specific  performance  will  be 
denied,47  and  it  matters  not  that  plaintiff  did  not  intend  to  take 


Mich.  355.  Announcing  the  rule 
stated  in  the  text  and  holding  that 
inadequacy  of  the  purchase  in  con- 
nection with  other  facts  were  suffi- 
cient to  warrant  the  court  in  refus- 
ing specific  performance. 

Burtch  v.  Hogge,  Hav.  31.  Hold- 
ing that  the  inadequacy  of  the  con- 
sideration may  be  so  palpable  as 
to  warrant  the  court  in  refusing  the 
relief  sought 

Rust  v.  Conrad,  47  Mich.  449. 
Holding  that  specific  performance 
will  not  be  decreed  if  its  considera- 
tion is  inadequate  or  if  it  contains 
overreaching  or  unfairness.  Said 
the  court  in  this  case,  "But  when 
a  party  comes  into  equity  it  should 
be  very  plain  that  his  claim  Is  an 
equitable  one.  If  the  contract  is 
unequal;  if  he  has  bought  land  at 
a  price  which  is  wholly  inadequate, 
if  he  has  obtained  the  assent  of 
the  other  party  to  unreasonable 
provisions;  if  there  are  any  indi- 
cations of  overreaching  or  unfair- 
ness on  his  part  the  court  will  re- 
fuse to  entertain  his  case,  and 
turn  him  over  to  the  usual  rem- 
edies."    Chambers  v.  Livermore,  15 


Mich.  381;  Munch  v.  Shabel,  37 
Mich.  166;  Mississippi,  etc.,  R.  R. 
Co.  v.  Cromwell,  91  U.  S.  643;  Bur- 
ton v.  LeRoy,  5   Sawy.  510. 

46.  Higgins  v.  Butler,  78  Me.  520, 
1  Atl.  276.  The  defendant,  a  woman, 
agreed  to  sell  land  worth  twelve 
hundred  dollars  for  a  horse  worth 
one  hundred  dollars.  The  court 
refused  to  enforce  it.  The  several 
elements  of  inequality,  inadequacy 
of  consideration  and  misapprehen- 
sion of  rights  combine  to  lead  the 
court  to  its  conclusion.  Cathcart 
v.  Robinson,  5  Pet.  U.  S.  264,  8  L. 
Ed.  120;  Gasklns  v.  Byrd,  66  Fla. 
432,  63  South  824;  Shoop  v.  Burn- 
side,  78  Kan.  871,  98  Pac.  202;  War- 
ren Mfg.  Co.  v.  City  of  Baltimore, 
119  Md.  188,  86  Atl.  502;  Worth  v. 
Watts,  76  N.  J.  Eq.  299,  74  Atl.  434; 
Bullock  v.  Eldridge  (R.  I.),  90  Atl. 
737;  Griffith  v.  Spratley,  1  Cox.  C. 
C.  383,  389,  29  Eng.  Reprint,  1213. 

47.  Pomeroy  Eq.  Jur.,  2nd  Ed. 
2209.  Specific  performance  will  be 
denied  where  the  plaintiff  was  a 
clever  and  financially  irresponsible 
promoter  and  so  frames  the  con 
tract  as  to  permit  of  protracted  de 


238 


THE  LAW  OF  LAND  CONTRACTS 


[§106 


any  unfair  advantage  if  the  actual  result  of  his  bargain  is  in- 
equality and  unfair  advantage,  equity  will  not  afford  him 
relief.48 

The  inequality  which  equity  regards  as  material  may  be 
divided  into  two  general  classes. 

(a)  Where  the  defendant  acted  under  the  pressing  necessity 
of  circumstances,  or  was  at  a  disadvantage  in  the  transaction 
by  reason  of  old  age,  poverty,  ignorance,  inexperience,  sex, 
etc.49 

(b)  Where  the  inequality  arises  not  from  the  condition  or 
situation  of  the  parties,  but  in  the  operation  of  the  contract.50 
Contracts  of  this  class  are  so  indefinite  or  unqualified  as  to 
terms  that  their  enforcement  would  produce  an  inequality  not 
foreseen  by  the  defendant. 

As  an  example  of  first  class  of  contracts,  it  has  been  held 
that  even  if  the  price  was  fair,  no  undue  influence  used,  or 
advantage  taken  the  court  would  not  enforce  specific  perform- 
ance against  an  aged,  invalid  woman  who  was  without  male 
advisers  in  making  the  bargain.51 

§  107.  Where  Non-Enforceable  Agreement  Performed  by 
Plaintiff. — In  a  large  number  of  cases  a  court  of  equity  will 


lays  in  payment,  the  sellers  are 
ignorant  people  of  foreign  extrac- 
tion. 

48.  Tildersley  v.  Clarkson,  30 
Beav.  419;  Marks  v.  Gates,  154  Fed. 
481,  12  Ann.  Cas.  120,  14  L.  R.  A. 
(N.  S.)  317,  83  C.  C.  A.  321;  Clark 
v.  Rosario  Mining  &  Milling  Co. 
176  Fed.  180,  99  C.  C.  A.  534;  Ala- 
bama Cent.  R.  Co.  v.  Long,  158  Ala. 
301,  48  South  363;  Swint  v.  Carr, 
76  Ga.  322,  2  Am.  St.  Rep.  44;  Koch 
v.  Streuter,  232  111.  594,  83  N.  E. 
1072;  Goodwin  v.  Springer,  233  111. 
229,  84  N.  E.  234;  Wilson  v.  Lar- 
son, 138  Iowa,  708,  116  N.  W.  703; 
George  Gunther,  Jr.,  Brewing  Co. 
v.  Brywczynski,  107  Md.  696,  69 
Atl.  514;  Banaghan  v.  Malaney,  200 
Mass.  46,  128  Am.  St.  Rep.  378,  19 


L.  R.  A.  (N.  S.)  871,  85  N.  E.  839; 
Miller  v.  Laneda,  75  Or.  349,  146 
Pac.  1090;  Latta  v.  Hax,  219  Pa.  St. 
483,  68  Atl.  1016;  Colonna  Dry  Dock 
Co.  v.  Colonna,  108  Va.  230,  61  S.  E 
770. 

49.  Lake  Erie  Land  Co.  v.  Chilin- 
ski,  197   Mich.   214. 

Also  where  there  has  been  over- 
reaching or  sharp  practices,  Gibbs 
v.  Mintline,  175  Mich.   626. 

No  relief  will  be  granted  where 
the  contracts  are  not  mutual.  Hol- 
lingshead  v.  Morris,  172  Mich.  126. 

For  a  case  where  relief  was  de- 
nied because  the  contract  was  op- 
pressive see  Realty  Co.  v.  Shaffer, 
176  Mich.  639. 

50.  Pomeroy  Eq.  Jur.,  Sec.  2209. 

51.  Pomeroy  Eq.  Jur.,   Sec.  2209. 


§108] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  239 


not  undertake  to  specifically  perform  a  contract,  because  of 
the  nature  of  the  promise,  as  in  the  case  of  contracts  for  per- 
sonal service,  agreements  to  procure  the  assent  of  third  per- 
sons, agreements  requiring  special  knowledge,  skill,  etc.,  or  in 
cases  of  incapacity  of  the  parties,  or  where  plaintiff's  promise 
is  too  indefinable  and  uncertain,  while  the  contract  remains 
executory  in  all  these  cases  equity  will  not  afford  relief,  be- 
cause of  lack  of  mutuality  on  the  right  and  obligations  growing 
out  of  the  circumstances  of  the  parties  or  the  nature  of  the 
contract,  but  where  such  contracts  have  been  executed  on  the 
part  of  the  person  in  whose  favor  the  disability  exists  then 
equity  will  specifically  perform  the  contract.68 

Thus,  in  cases,  when  a  contract  for  the  conveyance  of  land 
in  consideration  for  personal  services  has  been  entered  into  as 
we  have  seen,53  specific  performance  cannot  ordinarily  be  in- 
voked to  compel  the  rendering  of  such  personal  service,  but 
where  such  personal  services  have  been  fully  performed,  then 
specific  performance  of  the  contract  may  be  had.54 

§  108.  Specific  Performance  of  Option  Contracts. — Where  an 
option  contract  is  unambiguous  in  its  terms,  is  free  from  mis- 
take, fraud  or  misrepresentation,  and  is  free  from  unfairness, 
overreaching  or  deception,  a  court  of  equity  will  specifically 
enforce  it  as  a  matter  of  course.56 

Where  a  consideration  of  one  dollar  was  tendered  to  the 
vendee  of  such  option  contract,  such  consideration  has  been 
held  sufficient  to  support  an  action  of  specific  performance, 

52.  Pomeroy  Eq.  Jur.,  2nd.  Ed.,  Where  an  aged  woman  agreed  to 
Sec.  2103,  and  cases  there  cited.            convey   her   property   to   complain- 

53.  See  Note  60  ante.  ant  if  he  would  manage  the  farm 

r.    „„  .     , „„  „  . ,      and  take  care  of  her  and  complain- 

54.  Where  one  took  possession  of 

land   under   an   oral   contract   that 

he   should   receive   title   thereto   in 

....  -    _  „ _♦;„„     «.,,„      performance,     though     title     never 

consideration     of     supporting     the      * 

j  _,       ««  A  ~„a~ i.  „       passed  during  the  owners  lifetime. 

owner  during  life,  and  made  valua-      v  „         .  .„   ., „„„ 

Howe  v.   Benedict,  142   N.  W.   76S, 


ant  did  so  for  over  ten  years  before 
her  death,  he  is  entitled  to  specific 


176   Mich. 


ble    improvements    thereon    while 

carrying  out  his  agreement,  he  is 

entitled    to    specific    performance,  55.  George  v.  Schuman,  202  Mich 

though    title    never    passed    during      241. 

the  owner's  lifetime.     Felt  v.  Felt, 

118    N.   W.    953,   155    Mich.   237. 


240 


THE  LAW  OF  LAND  CONTRACTS 


[§108 


even  though  the  party  from  whom  such  option  had  been  taken 
neglected  or  refused  to  receive  such  sum.66 

Where  a  contract  for  the  sale  of  land  follows  from  acceptance 
of  an  option,  chancery  courts,  though  recognizing  the  rule  of 
law  as  applied  to  the  option  consideration,  hold  that  in  cases 
where  specific  performance  is  sought,  sufficiency  of  price  or 
adequacy  of  consideration  must  be  in  accordance  with  the 
equitable,  not  the  legal  rule.67 

But  where  an  instrument  recites  a  consideration  of  one 
dollar,  although  no  consideration  was  in  fact  paid  or  tendered, 
such  an  agreement  is  not  sufficient  to  constitute  a  binding 
option.68 

§  109.  No  Relief  When  Performance  Would  Be  Nugatory  or 
Decree  Impossible  to  Enforce. — A  court  of  equity  will  not  de- 
cree specific  performance,  where  either  by  want  of  appropriate 
means  and  instrumentalities,  while  pursuing  its  ordinary  modes 
of  administering  justice,  it  will  be  unable  to  enforce  the  decree 
when  made,  or  performance  by  the  defendant  is  impossible,  or 
where  from  the  facts  and  circumstances  of  the  case  the  decree 
for  any  reason  would  be  nugatory.69 

The  cases  in  which  specific  performance  has  been  refused 
upon  the  grounds  above  stated,  in  any  way  related  to  land 
contracts,  may  be  grouped  in  the  following  classes: 

(a)   Contracts  Requiring  Continuous  Service. 

The  law  is  now  well  settled  that  equity  will  not  affirmatively 
decree  specific  performance  of  a  land  contract,  requiring  con- 
tinuous acts  involving  skill,  judgment  or  technical  knowledge, 
such  as  contracts  for  the  erection  of  buildings  in  connection 
with  the  sale  of  real  estate,60  or  contracts  for  the  transfer  of 


56.  George  v.  Schuman,  supra; 
Mier  v.  Hadden,  148  Mich.  488. 

57.  George  v.  Schuman,  supra, 
distinguishing  Axe  v.  Tolbert,  179 
Mich.    566. 

58.  Axe  v.  Tolbert,  179  Mich.  566. 

59.  Pomeroy's  Equity  Juris.,  Sec. 
2179,  2178,  Vol  5,  2nd  Edition. 

60.  Green  v.  Bay  City  &  Port 
Huron      Railroad      Company,       158 


Michigan  436.  "Specific  enforce- 
ment of  a  contract  will  not  be  re- 
quired which  provides  for  unper- 
formed services  of  the  complain- 
ants of  such  a  personal  and  con- 
tinuing character  that  supervision 
by  the  court  is  impracticable  in  se- 
curing performance  of  complain- 
ants' undertaking." 

Heth  v.  Smith,  175  Mich.  328.  "In 
equity    a    parol    contract    to    lease 


§109] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


241 


real  estate  in  exchange  for  personal  services,  such  as  keeping 
or  furnishing  a  home  for  the  vendor,  during  his  natural  life 
where  the  action  is  instituted  by  the  vendor.61 

(b)   Incapacity  of  Parties  to  Perform. 

Where  the  vendor  does  not  have  the  title  to  the  real  estate 
equity  will  not  compel  specific  performance  by  the  vendee  of  a 
land  contract  at  the  instance  of  the  vendor.  If,  however,  the 
vendor  acquires  title  either  before  suit  or  before  the  decree 
has  been  entered,  specific  performance  will  be  granted.62  In 
line  with  this  doctrine  it  has  been  held  that  specific  perform- 
ance will  be  denied  where  defendant  never  owned  the  land  nor 
could  he  be  compelled  to  buy  and  convey  it  to  complainant,63 
but  where  the  defendants  had  a  contract  for  the  purchase  of  a 


land  for  the  life  of  the  tenant  who 
binds  himself  in  lieu  of  rent  to 
perform  personal  services  of  an  in- 
definite nature,  not  to  be  completed 
in  one  act,  and  involving  special 
knowledge,  skill,  judgment  or  in- 
tegrity, or  like  qualities  depending 
on  individual  ability  requiring  the 
continuous  performance  of  duties, 
such  that  a  court  of  equity  could 
not  well  regulate,  is  not  specifically 
enforceable. 

Pomeroy  Equity  Jur.,  Sec.  2183, 
2nd  Ed.  "Even  if  the  contract  was 
sufficiently  specific,  so  that  the 
party,  when  ordered  to  operate  the 
railroad  would  know  the  manner 
and  mode  in  which  the  order  was 
to  be  obeyed,  still  the  question  of 
obedience  to  the  order  must  nec- 
essarily be  left  open.  And  the  ques- 
tion of  obedience  to  such  an  order 
might  come  up  for  solution,  not 
once,  as  in  the  case  of  the  arch- 
way, the  erection  of  which  was  or- 
dered in  Storer  v.  Great  Western 
Railway,  but  in  instances  innumer- 
able and  for  an  indefinite  time.  In- 
stead of  the  final  order  being  the 
end   of   litigation,   it   would   be    its 


fruitful  and  continuous  source,  and 
that,  too,  of  litigation  not  in  the 
regular  course  of  judicial  proceed- 
ings, but  irregularly,  on  a  summary 
application.  And  such  application 
to  be  made  by  either  party,  one 
when  he  conceived  there  had  not 
been  a  faithful  compliance  with 
the  order,  and  the  other  when  ex- 
emption from  some  provision  might 
be  claimed,  on  the  ground  of  in- 
ability or  unforeseen  events."  Port 
Clinton  R.  R.  Co.  v.  Cleveland  & 
T.  R.  Co.,  13  Ohio  St.  544,  556;  Pin- 
gle  v.  Connor,  66  Mich.  187;  Blan- 
chard  v.  Detroit  L.  &  L.  R.  Co.,  31 
Mich.  43;  Weed  v.  Torrey,  2  Doug. 
Mich.  344;  Bourget  v.  Monroe,  58 
Mich.  563;  Buck  v.  Smith,  29  Mich. 
166;  Green  v.  Bay  City  R.  Co.,  158 
Mich.  436;  Sanquirisco  v.  Bene- 
detti,  1  Bar.  315. 

61.  Pomeroy  on  Equity,  Sec.  2193, 
2nd  Ed.;  Heith  v.  Smith,  175  Mich. 
328. 

62.  Pomeroy  Eq.  Jur.,  Sec.  2178, 
2nd  Ed.;  Guild  v.  Atkinson  R.  R.. 
57  Kansas  70,  51  Am.  33  L.  R.  A.  77. 

63.  Laubengayer  v.  Rohde,  167 
Mich.  605. 


242  THE  LAW  0F  LAND  CONTRACTS  [§  109 

tract  of  land  specific  performance  may  be  enforced  where  it 
was  within  their  power  to  obtain  title.64  Mere  pecuniary  in- 
ability to  perform  the  contract  is  not  such  incapacity  as  will 
justify  the  court  in  withholding  specific  performance.66 

The  rule  that  specific  performance  will  not  be  decreed  against 
a  defendant  unable  to  perform  applies  even  in  cases  where  the 
defendant's  inability  to  perform  results  from  his  own  wrongful 
act  as  where  a  vendor  after  making  the  contract  and  before 
suit  conveyed  it  to  an  innocent  third  party,  in  such  cases 
specific  performance  will  be  refused  although  the  defendant 
may  be  held  for  damages.66  In  case  the  contract  purchaser 
from  the  vendor  is  not  an  innocent  purchaser  and  he  enters 
into  a  contract  to  purchase  with  full  knowledge  of  a  prior 
outstanding  contract,  then  specific  performance  may  be  had 
against  both  the  original  vendor  and  his  vendee.67 

§  110.  What  Mistakes  Warrant  Denial  of  Specific  Perform- 
ance.— We  are  not  here  concerned  with  mutual  mistakes  of 
fact  and  of  law  affordnig  the  parties  the  remedies  of  rescission 
or  reformation  as  mistakes  sufficient  to  obtain  either  rescission 
or  cancellation  in  which  all  rights  in  the  contract  either 
at  law  or  equity  are  cancelled,  would  of  course  be  sufficient  to 
warrant  the  refusal  of  the  discretionary  remedy  of  specific 
performance,  and  that  subject  is  treated  elsewhere.68  Our  dis- 
cussion here  is  confined  to  those  circumstances  where  the  mis- 
take is  insufficient  to  warrant  rescission  or  cancellation  and 

64.  Brin  v.  Michalski,  188  Mich.  Me.  86;  Gupton  v.  Gupton,  47  Mo. 
400.  37;  Warren  v.  Richmond,  53  111.  52. 

65.  Pomeroy  Equity,  2nd  Ed.,  Sec.  67.  Pomeroy  Eq.  Jur.  2nd  Ed., 
1405;  Green  v.  Smith,  1  Atkinson,  Sec.  1405;  Yovell  v.  Allen,  18  Mich. 
572;  Columbine  v.  Cluchester,  2  107;  Snowman  v.  Harford,  57  Me. 
Phill  C.  27;  Hallett  v.  Middleton,  397;  Fullerton  v.  McCurdy,  4  Kans. 
1  Rus.  243;  Burk  v.  Seeley,  46  Mo.  132;  Houghwout  v.  Murphy,  22  N. 
334;  Burton  v.  Shotwell,  13  Bush  J.  Ed.  531;  21  N.  J.  Eq.  118;  Cole 
271.  v.    Cole,    41    Md.    301;     Bryant    v 

66.  Pomeroy's  Equity  Jur.,  2nd  Boozs,  55  Ga.  438;  Johnson  v.  Bow- 
Ed.,  Sec.  1405;  Denton  v.  Stewart,  den,  37  Tex.  621;  Bird  v.  Hall,  30 
1  Cox,  258;  Greenaway  v.  Adams,  Mich.  347;  Gregg  v.  Hamilton,  12 
12  Ves.  395,  400;   Ferguson  v.  Wil-  Kan-  333- 

son,  L.  R.  2  Ch.  77;  Smith  v.  Kelley,  68.  See  Chapter  XII  on  Reforma- 

56  Me.   64;    Little   v.   Thurston,   58      tion  of  Instruments. 


§  110]        SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


243 


yet  which  may  be  a  sufficient  reason  for  a  court  of  equity  in 
the  exercise  of  its  discretion  to  deny  specific  performance. 

(a)  Mistake  Induced  by  Plaintiff. 

It  is  well  settled  that  where  the  mistake  was  induced  or 
caused  by  the  conduct  of  the  plaintiff  equity  will  not  decree 
specific  performance  against  the  defendant  if  the  mistake  was 
a  material  one.  It  makes  no  difference  even  if  the  intentions 
of  the  plaintiff  were  honest,  he  must  bear  the  burden  of  loss 
which  he  has  assisted  in  producing.69 

(b)  Mistake  Known  to  Plaintiff,  But  Not  Induced  by  Him. 
In  many  cases  equity  will  refuse  specific  performance  where 

the  plaintiff  knew  a  mistake  was  being  made  by  the  defendant 
or  the  circumstances  were  such  that  he  might  be  charged  with 
notice  of  the  facts,70  and  even  where  the  mistake  is  of  such  a 
character  that  ordinarily  it  would  not  avail  the  defendant  as  a 
defense,  yet  if  the  plaintiff  knew  of  it  at  the  time  it  was  made 
equity  will  refuse  to  specifically  perform  the  contract.71  From 
what  has  been  said  it  is  obvious  that  if  the  mistake  has  been 
brought  about  by  the  defendant's  negligence  the  courts  will  as 
a  rule  refuse  to  accept  the  mistake  as  a  defense.72 

(c)  Mistake  by  Defendant  Without  Negligence. 

Where  the  mistake  is  due  solely  to  the  defendant,  but  without 
negligence  on  his  part  and  without  overreaching  or  advantage 
taken  by  the  plaintiff,  the  rule  is  that  equity  will  afford  relief 
and  refuse  specific  performance  only  where  the  mistake  relates 
to  a  vital  portion  of  the  contract,  and  this  means,  that  it  is 
not  a  mistake  in  mere  difference  in  quantity,  but  a  mistake 


69.  Pomeroy  Equity  Jur.,  2nd  Ed 
2202;  Denny  v.  Hancock,  L.  R.  6 
Ch.  App.  1;  Mason  v.  Armitage,  13 
Ves.  25;  Goddard  v.  Jeffreys,  51  L. 
J.  Ch.  57;  Bascombe  v.  Beckwith, 
L.  R.  8  Eq.  100;  Western  R.  R. 
Co.  v.  Babcock,  6  Met.  346;  Van 
Praeger  v.  Everidge  (1902)  2  Ch. 
App.  271,  2  Pomeroy  Eq.  Jur.,  4th  Ed. 
860;  Smith  v.  Toth,  61  Ind.  App.  42, 
111  N.  E.  442;  Louisville  Ry.  Co.  v. 
Kellner-Dehler  Realty  Co.,  148  Ky. 
765,  147  S.  W.  424;  Allen  v.  Kirk, 
219  Pa.  574,  69  Alt.  50. 


70.  Pomeroy  Eq.  Jur.  2nd  Ed. 
2203. 

71.  Pomeroy  Eq.  Jur.  2nd  Ed.  Sec. 
2203. 

72.  Pomeroy  Eq.  Jur.  2nd  Ed. 
2203;  Chute  v.  Quincy,  156  Mass. 
189,  30  N.  E.  550;  Twining  v.  Neil. 
38  N.  J.  Eq.  470;  Boorum  v.  Tucker. 
51  N.  J.  Eq.  135,  141,  26  Atl.  456; 
Mansfield  v.  Sherman,  81  Me.  365, 
17  Atl.  300;  Webster  v.  Cecil,  30 
Beav.  62. 


244  THE  LAW  OF  LAND  CONTRACTS  [§  HO 

that  goes  to  the  whole  contract.73  The  rule  has  been  stated 
by  one  court  in  the  following  language.74  "If  he  (the  defend- 
ant), was  not  misled  by  any  act  of  the  vendor  then  the  court 
ought  not  to  let  him  off  his  bargain  on  the  ground  of  a  mis- 
take made  solely  by  himself,  unless  the  case  is  one  of  con- 
siderable harshness  and  hardship." 

§  111.  Effects  of  First  Substantial  Breach. — With  land  con- 
tracts, as  with  all  other  classes  of  contracts,  it  is  a  well  settled 
principle  of  law  that  he  who  commits  the  first  substantial  breach 
of  a  contract  cannot  maintain  an  action  against  the  other  con- 
tracting party  for  a  subsequent  failure  on  his  part  to  perform. 
It  follows,  therefore,  that  before  the  vendor  can  maintain  any 
action  against  the  vendee  in  reliance  upon  the  terms  and  condi- 
tions of  the  contract,  he  himself  must  not  have  been  guilty 
of  any  breaches  of  the  contract.  In  like  manner  it  follows  that 
the  vendee  cannot  maintain  any  action  against  the  vendor, 
either  for  specific  performance  or  otherwise,  if  the  vendee  has 
committed  any  substantial  breaches  of  the  contract.75 

§  112.  Mutuality  of  the  Remedy — Exceptions. — A  contract 
to  be  specifically  enforced  by  the  courts  must  as  a  general  rule, 
be  mutual.  That  is  to  say,  it  must  be  such  a  contract  that 
each  can  enforce  the  same  against  the  other.  If  by  reason  of 
the  nature  of  the  contract,  the  incapacity  of  the  parties  or  for 
any  other  cause,  the  contract  is  incapable  of  being  enforced 
against  one  party,  that  party  is  incapable  of  enforcing  the  same 
against  the  other.  This  doctrine  has  obtained  a  firm  place  in 
equity  and  has  been  followed  by  a  number  of  Michigan 
decisions.76 

As  stated  in  a  late  Michigan  case  the  exceptions  to  the  doc 

73.  Pomeroy  Eq.  Jur.,  2nd  Ed.  Holding  remedies  were  not  mu- 
Sec.  2205.                                                     tual.      Heth    v.    Smith,    175    Mich. 

74.  Goddard  v.  Jeffreys,  51  L.  J.      328. 

Ch.  57.  A  contract  to  convey  which  Is  not 

75.  Jones  v.  Berkey,  181  Mich  mutual  and  has  not  heen  accepted 
472.  will  not  be  specifically  performed. 

76.  Blanchard  v.  Railroad  Co.,  Hollingshead  v.  Morris,  172  Mich. 
31  Mich.  43;  Buck  v.  Smith,  29  126;  Green  v.  Railroad,  158  Mich. 
Mich.  166.  436;   Pomeroy's  Eq.  Jur.,  Sec.  2191. 


8  1131        SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  245 

trine  have  been  so  numerous  and  varied  that  at  the  present 
time  the  rule  has  little  force.77 

It  should  be  noted  that  the  test  of  mutuality  is  the  rights 
and  obligations  at  the  time  of  filing  the  bill  and  not  at  the  date 
of  making  the  contract. 

We  shall  now  consider  some  of  the  apparent  exceptions  to 
the  rule  which  applies  to  land  contracts. 

Where  A  Contract  Is  Signed  By  Only  One  Party. 

The  statute  of  frauds  requires  the  vendor  only  to  sign  the 
agreement  to  sell.  It  is  therefore  very  clear  that  until  accept- 
ance by  the  vendee  there  is  no  mutuality  of  remedy,  but  when 
the  vendee  files  a  bill  of  complaint  to  require  specific  perform- 
ance from  the  vendor  he  thereby  submits  to  the  jurisdiction  of 
equity  and  the  remedy  thereby  becomes  mutual.78 

Option  Contracts. 

The  common  form  of  unilateral  contract  known  as  the  option 
is  not  an  actual  exception  to  the  doctrine  of  mutuality  for  the 
reason  that  an  option  is  nothing  more  than  a  binding  offer. 
There  is  nothing  to  enforce  against  the  optionee  until  the  option 
has  been  exercised  and  usually  this  is  done  by  payment  of  the 
purchase  price.79 

§  113.  Relief  Granted,  Illustrative  Cases. — The  following  are 
illustrative  cases  where  the  relief  of  specific  performance  has 
been  granted  by  the  Michigan  Courts : 

On  a  bill  by  the  vendee  for  the  specific  performance  of  a 
land  contract  where  the  evidence  was  in  dispute  as  to  the 
amount  due  on  the  contract  the  Supreme  Court  reversed  the 
decision  of  the  lower  court  refusing  such  relief  and  entered  a 
decree  for  the  plaintiff.80 

77.  Reo  Motor  Car  Co.  v.  Young,  the  making,  was  never  paid,  and, 
209  Mich.  591.  as  claimed  by  plaintiffs,  was  never 

78.  Pomeroy's  Eq.  Jur.,  Sec.  2192.  intended  to  be  paid,  which  defend- 

79.  Pomeroy's  Eq.  Jur.,  Sec.  2194.  ant   claims  was   credited   with   the 

80.  "On  a  bill  by  the  vendees  for  understanding  that  plaintiffs  fa- 
specific  performance  of  a  land  con-  ther  wouId  Pa^  Jt  inside  of  tw0 
tract  for  the  sale  of  a  house  and  weeks=  evidence  as  to  the  con- 
lot,  where  the  evidence  is  undis-  Aiding  claims  examined,  and  held, 
puted  that  a  $1,000  payment,  cred-  preponderate  in  favor  of  plaintiffs 
ited  on  the  contract  at  the  date  of  and  to  require  reversal  of  the  de- 


246 


THE  LAW  OF  LAND  CONTRACTS 


[§113 


The  fact  that  real  estate  has  increased  in  value  since  the  exe- 
cution of  the  contract  is  insufficient  to  defeat  the  right  of  the 
vendee  to  specific  performance  on  a  contract  of  sale.81 

Where  a  firm  of  attorneys  enter  into  a  contract  whereby  it 
was  stipulated  as  a  payment  for  their  services  they  should  re- 
ceive one-third  of  the  land  recovered,  a  decree  for  specific  per- 
formance was  held  to  be  not  legally  objectionable  because  the 
specific  land  in  which  such  interest  should  attach,  was  not 
described.82 

Where  the  vendee  appeared  at  the  appointed  time  and  place 
ready  and  willing  to  pay  and  the  vendor  failed  to  appear,  suffi- 
cient tender  was  made  to  entitle  the  vendee  to  specific  perform- 
ance of  the  land  contract.  It  was  not  necessary  to  prepare  and 
tender  a  deed  to  be  executed  by  the  vendor.83  In  order  to 
invoke  the  relief  of  specific  performance  a  parol  contract  for 
conveyance  of  real  estate  should  be  clearly  established  in  its 


cree  for  defendant  in  the  court 
below."  Barker  v.  Finley,  200  Mich. 
166. 

81.  "While  the  remedy  by  specific 
performance  is  not  one  of  right, 
and  rests  in  the  discretion  of  the 
court,  such  discretion  to  be  exer- 
cised is  a  judicial  one  and  cannot 
be  arbitrarily  or  captiously  exer- 
cised, and  must  be  based  upon  facts 
proved   by   competent  testimony." 

"Specific  performance  of  a  con- 
tract to  convey  a  factory  site  will 
not  issue  upon  condition  that  plain- 
tiff erect  a  factory  on  such  site, 
where  no  such  condition  was  in- 
serted in  the  contract  of  sale,  and 
if  plaintiff  was  required  to  meet 
such  condition  it  would  probably 
be  unable  to  induce  a  railroad  com- 
pany to  make  side-track  connec- 
tions, and  would  have  to  make 
them  itself  at  considerable  ex- 
pense." Kerwin  Machine  Co.  v. 
Baker,  199  Mich.  122. 


82.  "In  a  suit  for  specific  per- 
formance of  a  contract  between  a 
firm  of  attorneys  consisting  of  one 
of  plaintiffs  and  the  decedent  of 
the  other  and  defendant  whereby 
the  firm  was  employed  by  defend- 
ant as  her  attorney  to  prosecute  a 
contemplated  suit  to  recover  cer- 
tain lands  and  the  firm  was  to  have 
as  compensation  a  one-third  inter- 
est in  recovered  lands,  a  decree 
for  specific  performance  was  not 
legally  objectionable  because  the 
specific  lands  to  which  such  inter- 
est should  attach  were  not  de- 
scribed in  the  contract  or  because 
the  lands  were  to  be  divided  when 
recovered,  as  after  recovery  the 
contract  would  relate  to  the  recov- 
ered lands,  specifically  and  it  would 
be  as  though  the  specific  items  re- 
covered had  been  originally  writ- 
ten in  the  contract."  Gates  v.  Mc- 
Laulin,  199   Mich.  438. 

83.  Frazer   v.    Hovey,    161    Mich 
819. 


§  113] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  247 


essentials  by  a  convincing  preponderance  of  the  evidence  to 
warrant  a  decree  to  justify  such  relief.84 

Where  a  party  secured  an  option  on  an  agreement  on  a  piece 
of  property  for  $1,000.00  per  acre  and  within  a  few  months 
thereafter  sold  it  for  $2,000.00  per  acre,  the  fact  that  the  prop- 
erty had  increased  in  value  was  not  sufficient  to  warrant  the 
court  in  refusing  to  specifically  perform  the  contract.85 

If  the  abstract  of  title  is  defective  by  disclosing  certain  build- 
ing restrictions,  the  vendee  cannot  be  compelled  to  accept  such 
title,  and  he  will  be  justified  in  declining  to  go  forward  with 
the  sale,  and  cannot  be  compelled  to  do  so  by  specific  perform- 
ance.86 

While  the  courts  are  reluctant  to  attempt  to  enforce  specific 
performance  of  contract  requiring  personal  service  extending 
over  a  considerable  period  of  time,  nevertheless  such  relief  has 
been  granted  by  the  Michigan  Supreme  Court,  in  a  case  where 
a  father  deeded  certain  premises  to  his  son  who  was  to  conduct 
a  saloon  business  thereon,  pay  existing  encumbrances  against 
the  same  and  then  execute  a  life  lease  to  the  father  who  was 
to  have  "a  living  out  of  the  proceeds  of  such  business  without 
charge,"  therefore,  upon  performance  of  this  contract  by  the 

84.  Prendergast  v.  Prendergast,  have  been  procured  by  any  misrep- 
206  Mich.  526.  "On  a  bill  for  the  resentation  or  fraud,  and  plaintiff 
specific  performance  of  a  contract  having  fully  performed  or  made 
to  convey  land  by  a  father  to  a  tender  of  full  performance  which 
son  in  consideration  of  the  son's  was  kept  good  by  tender  into  court 
living  at  home,  working  the  land,  of  the  full  contract  price,  the  de- 
and  making  a  home  for  the  father,  cree  of  the  court  below  in  favor  of 
executed  upon  the  part  of  plain-  plaintiff  for  specific  performance 
tiff,  evidence  held  sufficient  to  es-  will  be  affirmed."  George  v.  Schu- 
tablish  an  agreement  to  convey  to  man,  202  Mich.  242. 

plaintiff  the  homestead  of  40  acres."  86    Hicks  v   Tierckf  72  Mich.  311. 

85.  "The  finding  of  the  court  be-  "It  does  not  appear  to  be  denied 
low  that  the  option  price  of  $1,000  that  the  abstract  showed  that  the 
per  acre  was,  at  the  time  the  op-  premises  were  subject  to  certain 
tion  was  given,  a  fair  market  price  building  restrictions.  It  is  undoubt- 
and  all  that  could  have  been  ob-  edly  true,  as  plaintiff  urges,  that 
tained  in  the  open  market,  held,  building  restrictions  constitute  a 
supported   by   the   evidence.  cloud  upon  the  title."     39  Cyc.  P. 

The   contract  being   complete   in       1500   and  cases  cited, 
its  terms,  and  not  being  shown  to 


248  THE  LAW  0F  LAND  CONTRACTS  [§  113 

son  it  was  held  that  the  father  was  entitled  to  specific  perform- 
ance of  the  agreement  for  his  support.87 

Where  a  defendant  had  entered  into  a  written  contract  which 
was  certain  in  its  terms  free  from  ambiguity  and  was  fair  to 
all  the  parties  specific  performance  will  be  decreed  even  though 
a  consideration  of  one  dollar  was  tendered  in  satisfaction  of  the 
consideration  stated  in  the  instrument.88 

It  has  been  held  that  where  a  daughter  entered  into  a  con- 
tract with  her  father  to  purchase  from  him  a  house  and  that 
she  was  to  be  permitted  to  occupy  it  by  paying  five  per  cent, 
interest  on  the  agreed  purchase  price  and  had  taken  possession 
of  the  premises  and  held  the  same  for  six  years,  keeping  up  the 
repairs  and  payng  the  taxes,  that  specific  performance  would 
be  decreed  against  the  father.89 

It  has  also  been  held  that  where  defendants  entered  into 
an  oral  contract  for  the  sale  of  a  house  and  lot  and  plaintiff 
took  possession  under  such  verbal  contract,  exercised  acts  of 
ownership  over  the  property,  including  remodeling  a  portion 
of  the  house,  specific  performance  would  be  granted  at  the 
instance  of  the  vendor  against  the  vendee.90 

If  the  abstract  of  title  to  the  premises  is  defective  the  vendee 
may  waive  such  defect  and  enforce  specific  performance  against 
the  vendor.91 

87.  Whitman  v.  Whitman,  207  he  was  still  bound  to  perform. 
Mich.  337.  While   matters   stood  in  this  wise 

88.  George  v.  Shuman,  202  Mich.  and  before  defendants  had  ac- 
242  quiesced   in   plaintiff's   election   he 


89.  Fowler    v.    Isabel,    202    Mich 
572. 


advised  them  in  writing  he  would 
waive  the  defects  and  would  deem 

himself  bound  by  the  contract.  This 

90.  Pearson  v.  Gardner,  202  Mich.      then  placed  the  parties  back  in  the 

360-  position  where  both  were  bound  to 

91.  "When  this  situation  devel-  perform  the  contract.  But  counsel 
oped  it  was  the  duty  of  defendants  says  that  plaintiff  repudiated  the 
to  do  one  of  two  things,  either  contract  on  January  25th  and  he 
get  the  building  restrictions  re-  could  not  thereafter  insist  on  de- 
leased  or  return  plaintiff's  payment  fendants  performing  it.  True,  he 
to  him.  Plaintiff  suggested  they  elected  to  have  a  return  of  his 
return  his  money  but  defendants  money  as  he  had  a  right,  as  the 
refused  to  do  so  and  denied  that  abstract  did  not  show  a  clear  title, 
he  was  entitled  to  it,  thereby  claim-  but  by  reason  of  defendant's  in- 
lng,   by   implication   at   least,   that  sistence  that  he  was  bound  by  his 


§113] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT 


249 


Where  pursuant  to  an  agreement  for  the  exchange  of  land 
and  deeds  have  been  executed  and  deposited  in  escrow,  equity 
will  enforce  a  specific  performance  of  the  contract  and  the 
suit  of  the  party  who  has  complied  with  the  conditions  upon 
which  the  deeds  were  deposited.92 

The  purchaser  of  a  lot  in  a  tract  which  the  vendors  repre- 
sented to  be  subject  to  building  restrictions  may  enforce  equita- 
ble obligations  to  sell  the  remainder  of  the  property  in  that 
tract  subject  to  such  building  restrictions.93  It  has  even  been 
held  that  a  parol  agreement  by  parents  made  with  their  son 
to  land  adjoining  their  own  in  consideration  of  his  making  his 
home  thereon  and  working  and  improving  the  same  may  if 
the  son  fulfills  the  conditions  be  specifically  enforced  by  his 
wife  and  children  after  his  decease.94 

Specific  performance  may  be  invoked  by  a  husband  against 
his  wife  to  compel  her  to  carry  out  the  terms  of  a  settlement 
of  their  mutual  property  upon  separation.95  A  contract  by 
which  a  wife  conveys  her  dower  to  her  husband  in  considera- 
tion of  the  conveyance  by  him  to  her  of  property  held  is  a 
proper  subject  for  specific  performance  at  the  interest  of  the 
husband.96 

Specific  performance  of  an  oral  agreement  to  convey  defend- 
ant's farm  to  plaintiff  in  consideration  of  services  rendered  for 
which  plaintiff  received  no  compensation  has  been  granted.97 
An  oral  contract  by  a  mother  fully  performed  on  one  side  to 


contract,  he  waived  the  defects  and 
advised  them  that  he  would  accept 
a  conveyance  subject  to  the  de- 
fects. 

"It  is  also  argued  that  plaintiff 
did  not  perform  within  30  days 
and  that  time  was  of  the  essence 
of  the  contract  and,  therefore,  he 
is  not  entitled  to  specific  perform- 
ance. The  contract  provided  that 
he  was  to  forfeit  the  payment  only 
in  the  event  that  he  failed  'to 
complete  the  agreement  on  his  part 
within  30  days.'  The  plaintiff  was 
not  in  default.  The  defendants 
were  in  fault.  This  being  true, 
plaintiff   had   a   right   to,   and   did, 


waive  the  defects,  and  after  so  do- 
ing he  had  a  right  to  insist  upon  a 
performance  by  defendants."  An- 
derson v.  Kennedy,  51  Mich.  467;  36 
Cyc.  P.  746;  Ogooshevitz  v.  Wari- 
jas,  203  Mich.  666. 

92.  Bowman   v.    Gork,    106    Mich. 
163. 

93.  Statt  v.  Avery,  156  Mich.  674. 

94.  Briggs    v.    Briggs,    113    Mich 
371. 

95.  Segler    v.    Segler,    108    Mich 
591. 

96.  Dakin  v.  Dakin,  97  Mich.  284. 

97.  Woodward     v.     Walker,     192 
Mich.   188. 


250 


THE  LAW  OF  LAND  CONTRACTS 


[§113 


convey  to  her  daughter  and  her  husband  a  homestead  in  con- 
sideration that  the  latter  would  render  such  services  as  had 
been  rendered  would  be  specifically  enforced.98.  See  also  addi- 
tional cases  in  the  note." 

§  114.  Illustrative  Cases,  Relief  Denied.— Where  the  plain- 
tiff has  not  fully  performed  the  contract  on  his  part,  and  the 
nature  thereof  is  such  that  the  court  cannot  compel  perform- 
ance by  the  plaintiff,  it  will  refuse  to  decree  specific  perform- 
ance by  the  defendant.100  The  vendee  in  a  land  contract  in 
asking  a  decree  for  a  deed  must  show  that  he  has  paid  the  pur- 
chase price  or  that  he  is  ready,  able,  and  willing  to  pay  such 
purchase  price,  otherwise  a  decree  for  specific  performance 
will  be  refused.101 


98.  "A  contract  fully  performed 
on  the  one  side,  to  convey  to  a 
daughter  and  her  husband  defend- 
ant's homestead  in  consideration 
that  the  former  would  give  up  their 
farm,  move  to  the  home  in  the  vil 
lage  and  occupy  it  with  defendant, 
and  make  some  improvements 
named,  the  deed  to  be  executed 
when  the  improvements  were  com- 
pleted, is  enforceable  against  the 
grantor  though  it  was  not  in  writ- 
ing. 

"It  is  not  a  matter  of  course  to 
decree  specific  performance;  a 
sound  discretion  is  exercised,  and 
the  same  must  not  be  arbitrary  and 
capricious,  but  regulated  on  judi- 
cial grounds;  where  the  terms  are 
certain  and  definite,  the  acts  of 
the  parties  and  performance  on  the 
one  side  take  it  out  of  the  statute." 
Friend  v.  Smith,  191  Mich.  99. 

99.  Rubenstine  v.  Powers,  215 
Mich.  435.  Where  specific  perform- 
ance was  enforced  against  both 
vendor  and  vendee  and  where  ven- 
dor was  compelled  to  specifically 
perform  as  to  a  fractional  interest. 

Friskorn  v.  Fitzgerald,  215  Mich. 


106.  Where  property  had  greatly 
increased  in  value  by  plaintiff's 
own   efforts. 

Birney  v.  Ready,  216  Mich.  7. 
Where  specific  performance  was 
granted  to  a  vendee  on  cross-bill 
who   had   purchased. 

Goodman  v.  Wobig,  216  Mich.  51. 
Relating  to  the  assignment  of  a 
patent. 

Standard  Oil  Co.  v.  Murray,  214 
Mich.  431.  Relief  of  specific  per- 
formance in  this  case  was  granted 
and  it  was  held  that  it  was  no 
defense  to  the  action  of  specific 
performance  where  the  defendant 
claims  she  did  not  understand  the 
contract  and  there  was  no  show- 
ing of  fraud  or  misrepresentation 
on  the  part  of  plaintiff  or  his  agent. 

It  was  also  held  in  this  case  that 
conversations  between  the  defend- 
ant and  her  attorney  tending  to 
show  what  instructions  she  had 
given  him,  were  not  admissible  in 
evidence. 


100.  Green     Bay     City     v. 
Huron  R.  Co.,  156  Mich.  436. 


Port 


101.  Morris  v.  Hoyt,  11  Mich.  8. 


§114] 


SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT  251 


On  the  other  hand  the  vendor  must  show  that  he  is  ready, 
willing,  and  able  to  give  a  good  title  to  the  lands  which  he 
contracted  to  sell  before  he  can  maitain  a  bill  for  specific  per- 
formance against  the  vendee,  as  the  court  will  not  compel  a 
vendee  to  accept  a  doubtful  title,  and  the  vendee  is  entitled  to  a 
reasonable  time  and  opportunity  to  examine  the  title.102  Un- 
less the  contract  is  mutual  and  binding  on  both  parties,  the 
court  will  not  enforce  it.103 

Where  a  contract  has  been  obtained  by  sharp  or  unscrupulous 
practices,  specific  performance  will  not  be  enforced.104 

Illustrating  the  principle  that  the  court  will  not  enforce 
inequitable  contracts,  it  has  been  held  where  a  contract  to  ex- 
change property  would  result  in  the  plaintiff  being  compelled 
to  transfer  his  property  for  practically  nothing,  the  court  in 
such  case,  would  not  decree  specific  performance.105 

Where  it  would  be  inequitable  to  do  so,  the  court  will  not 
grant  the  relief  of  specific  performance.106  Where  the  moving 
party  in  an  action  for  specific  performance  comes  into  court, 
having  driven  an  inequitable  bargain,  the  court  will  refuse  to 
specifically  perform  the  contract.107 

102.  Ford  v.  Wright,  114  Mich.  105.  State  Security  Realty  v. 
189;    Gray   v.   Mill.   105   Mich.   189;       Shaffer,   175  Mich.   634. 

Walker  v.  Sullivan,  127  Mich.  267;  106.  Where  defendants  would  be 

Raynard   v.    Davis,    127    Mich.    571;  compelled  to  convey  their  property 

Lambert  v.  Weber,  83  Mich.  395.  for  practically  nothing  if  the   con- 

103.  Where  payment  has  been  tract  was  enforced,  equity  would 
made  by  the  purchaser  and  there  not  decree  specific  performance. 

is  no  delivery  of  a  written  accept-  State    Security    &   Realty   Co.   v. 

ance  of  the  vendor's  offer,  although  Shaffer,  176  Mich.  639. 
such  acceptance  has  been  signed  by  107.  "The  remedy  by  specific  per- 

the  purchaser,  a  contract  to  convey  formance  is  not  a  remedy  of  right, 

the  land  was  not  mutual,  and  not  but  it  rests  in  the  sound  discretion 

enforceable     against     the     vendor.  of    the    court,    and    this    discretion 

Hollingshead   v.   Morris,   172   Mich.  should  be  exercised  unless  the  case 

126.  is   clear,   and   should   never  be   ex- 

104.  Specific  performance  of  a  ercised  where  the  moving  party 
contract  for  the  sale  of  land  will  does  not  come  into  equity  with 
not  be  awarded  if  it  has  been  ob-  clean  hands. 

tained    by    sharp    or    unscrupulous  "The    specific   performance    of   a 

practices  or  by  overreaching  or  con-  contract   for  the   purchase  of  real 

cealment  of  important  facts.     Gibb  estate  in  favor  of  the  purchaser  will 

v.   Mintline,  175   Mich.   626.  be    denied    where    the    latter    is    a 


252 


THE  LAW  OF  LAND  CONTRACTS 


[§114 


Where  a  contract  is  made  by  the  trustee  the  cestui  trust 
is  properly  joined  with  the  trustee  as  a  co-plaintiff  and  the 
bill  should  show  a  ratification  by  the  cestui  in  trust. 

Where  the  vendor  has  acquiesced  in  the  sale  of  the  vendee's 
interest  in  a  land  contract,  the  assignee  of  the  vendee  may 
have  the  same  remedy  by  specific  performance  that  his  assignor 
would  be  entitled  to.108 

It  is  the  duty  of  the  plaintiff  to  make  out  his  case  by  con- 
vincing evidence,  and  where  the  evidence  is  conflicting  and  the 
court  is  unable  to  say  where  the  truth  lies,  the  court  will  not 
decree  specific  performance.109 

Where  the  contract  calls  for  a  marketable  title,  to  be  shown 
by  the  abstract,  and  the  abstract  disclosed  that  the  title  rested 
upon  the  foreclosure  of  a  mortgage  by  advertisement,  but  does 
not  show  the  mortgage  contained  a  power  of  sale,  a  marketable 
title  is  not  shown  and  specific  performance  will  not  be  decreed 
at  the  instance  of  the  vendor.110 

It  has  been  held  that  where  the  plaintiff  contracted  to  pur- 
chase property  but  refused  to  accept  a  land  contract  which 
fully  complied  with  the  terms  of  the  preliminary  contract,  the 
transaction  was  there  at  an  end  and  after  such  refusal  on  his 
part,  specific  performance  would  not  be  enforced.111  See  addi- 
tional cases  in  the  note.112 


clever  and  financially  irresponsible 
promoter  and  so  frames  the  con- 
tract as  to  permit  of  protracted  de- 
lays in  payment,  and  the  sellers 
are  ignorant  people  of  foreign  ex 
traction,  and  it  is  unlikely  that  any 
tender  of  payment  would  have  been 
made  by  him  except  for  a  profit- 
able real  estate  transaction,  and 
when  pressed  for  payment,  told  the 
vendors  to  sell  the  property  to 
somebody  else  and  remained  inac- 
tive until  after  the  making  of  the 
sale." 

Lake  Erie  Land  Co.  v.  Chilinski, 
197  Mich.  214. 


108.  Maday  v.  Roth,  150  M.  290. 
John  v.  McNeal,  167  M.  157. 

109.  Brodway  v.  Miller,  200  Mich. 
648. 

110.  Ickler  v.  Mullen,  200  Mich. 
620. 

111.  Penfield  v.  Schleicher,  215 
Mich.  664;  Bradley  v.  May,  214 
Mich.  194.  Where  a  bill  of  com- 
plaint for  specific  performance  was 
dismissed  because  plaintiff  had  in- 
adequate remedy  at  law. 

112.  See  Sec.  121-122  P. 


CHAPTER  VIII 

SPECIFIC  PERFORMANCE 
PARTIES  TO  THE  ACTION— MISCELLANEOUS- 
FORMS— BILLS  OF  COMPLAINT— DECREES. 

§  115.  Parties  to  the  Action. 

§  116.  Specific  Performance  Substituted   Service. 

§  117.  Grantee  of  Vendor  as  Defendant. 

§  118.  Specific  Performance  Vendor  Against  Assignee  of  Vendee. 

§  119.  Specific  Performance  Against  Assignees  in  Bankruptcy. 

§  120.  Evidence,  Practice,  Miscellaneous  Decisions. 

§  121.  Specific  Performance— Illustrative  Cases— Relief  Granted. 

§  122.  Specific  Performance— Illustrative  Cases— Relief  Denied. 

§  123.  Specific  Performance— Bill  of  Complaint— Agreement  in  Writing. 

§  124.  Decree  for  Specific  Performance  of  Written  Contract. 

§  125.  Specific  Performance— Bill  of  Complaint— Verbal  Agreement. 

§  126.  Specific  Performance— Bill  of  Complaint  by  Vendee  Against  Admin- 
istrator and  Heirs  of  Vendor. 

§  127.  Bill  of  Complaint— Vendor  Against  Vendee. 

§  128.  Status  of  Unfulfilled  Land  Contracts  in  Case  of  Death  of  One  of  the 
Contracting  Parties. 

§  129.  Specific  Performance  in  the  Probate  Court. 

§  130.  The  Petition. 

§  131.  The  Hearing. 

§  132.  Provisions  for  Appeal. 

§  133.  Effect  of  Conveyance. 

§  134.  Effect  of  Registration  of  Decree. 

§  135.  Specific   Performance   by   Guardians   of   Incompetents   and   Spend- 
thrifts. 

§  136.  Specific  Performance  by  Guardians  of  Minors. 

§  137.  Form  of  Petition  for  Specific  Performance. 

§  138.  Form  of  Order  for  Publication. 

§  139.  Form  of  Proof  of  Service. 

§  140.  Form  of  Proof  of  Publication. 

§  141.  Form  of  Order  for  Specific  Performance  of  Land  Contract. 

§  142.  Deed  Where  Executor  or  Administrator  Conveys  Pursuant  to  Land 

Contract  Under  P.  A.  396,  1919. 
§  143.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases. 

§  115.  Parties  to  the  Action. — As  a  general  rule  the  only 
necessary  parties  to  an  action  for  specific  performance  are  the 
parties  to  the  original  contract  and  their  assignees.1 

1.  Russell  v.  Nester,  46  Mich.  291;        Story  Equity  Pleading,  Sec.  177. 


254  THE  LAW  OP  LAND  CONTRACTS  [§  H5 

Where  the  vendee  brings  an  action  for  specific  performance 
of  a  land  contract,  and  the  vendor  has  made  a  conveyance  of 
the  land  to  other  parties,  such  grantees  should  be  made  parties 
to  the  bill  in  accordance  with  the  general  rule.2 

If  the  vendor  should  become  deceased  after  the  execution 
of  the  land  contract  all  his  heirs,  executors  or  administrators 
should  be  made  parties  defendant.  In  case  the  vendor  has  died 
subsequent  to  the  execution  of  the  contract,  resort  may  be  also 
had  directly  to  the  Probate  court  instead  of  to  a  court  in 
chancery.  A  recent  statute  3  authorizes  the  Probate  court  to 
make  a  decree  directing  the  executor  or  administrator  of  such 
deceased  person's  estate  to  convey  such  real  estate  to  the  per- 
son entitled  thereto  in  all  cases  where  if  such  deceased  person 
were  living,  he  might  be  compelled  to  execute  such  conveyance. 

In  a  bill  of  complaint  by  vendee  against  the  vendor  of  land 
attaching  creditors  of  the  vendor  and  other  lienors  are  proper 
although  not  necessary  parties.4 

An  attachment  or  execution  creditor  is  a  proper  party  to 
bill  to  enforce  the  specific  performance  of  a  land  contract,  if 
taking  his  claims  at  their  face  value  he  stands  in  the  place  of 
the  vendor.6 

2.  Daily  v.  Litchfield,  10  Mich.  29:  "At  the  time  and  place  appointed 
Morris  v.  Hoyt,  11  Mich.  9;  Bremer  for  such  hearing,  or  at  such  other 
v.  Dodge,  28  Mich.  359;  Lambert  time  as  the  same  may  be  adjourned 
v.  Weber,  83  Mich.  395.  to,  upon  proof  by  affidavit  of  the 

3.  Story  Eq.  PI.,  Sec.  160;  Mor-  publication  of  the  notice,  the  per- 
gan  v.  Morgan,  2  Wheat.  297;  Ro-  sonal  service  thereof  or  waiver  of 
bert  v.  Merchant,  1  Hare  547;  Cum-  sucn  notice  of  hearnig,  the  court 
mins  &  Beecher  Judicature  Act,  sha11  proceed  to  a  hearing,  and  all 
Sec.  2160.  persons    interested    in    the    estate 

4.  "When  any  person  who  is  may  appear  before  tbe  Probate 
bound  by  a  contract  in  writing  to  court  and  defend  against  such  Pe" 
convey  any  real  estate  shall  die  be-  tition;  and  the  court  may  examine 
fore  making  the  conveyance,  the  on  oath  the  petitioner  and  all  others 
probate  court  may  make  a  decree  who  may  be  P™duced  before  him 
authorizing  and  directing  the  exe-  for  that  PlirPose." 

cutor   or   administrator   to    convey  Cummins    &   Beecher  Judicature 

such  real  estate  to  the  person  en-  Act>  Sec"  2160  and  2162- 

titled   thereto,   in   all   cases   where  5.  Horton   v.   Hubbard,   83    Mich. 

such    deceased    person,    if    living,  123. 

might  be  compelled  to  execute  such 

conveyance." 


s  H5]  SPECIFIC  PERFORMANCE  255 

Where  a  landowner  agrees  in  writing  to  sell  a  parcel  of  land 
to  a  person  who  is  described  in  the  contract  as  "trustee,"  no 
trust  being  otherwise  expressed  in  the  instrument,  a  bill  by 
the  trustees  and  his  cestui  que  trust  against  the  landowner 
for  specific  performance,  in  which  the  trust  is  fully  declared, 
and  a  conveyance  to  the  cestui  que  trust  prayed,  is  not  objec- 
tionable as  an  attempt  to  enforce  the  execution  of  a  parol 
trust.6 

It  is  provided  by  statute  that  all  persons  who  claim  any 
interest  in  the  subject  matter  of  an  equitable  action  adverse 
to  the  plaintiff  may  be  joined  as  parties  defendant  and  that 
all  persons  having  a  united  interest  must  be  joined  on  the 
same  side  as  the  plaintiff  or  the  defendant,  but  when  any 
person  refuses  to  join  as  a  party  plaintiff,  he  may  by  reason 
of  such  refusal  be  made  a  party  defendant  under  this  statute. 
The  question  as  to  whether  or  not  an  individual  should  be 
joined  as  a  party  defendant  should  be  tested  by  his  interest 
in  the  subject  matter  of  the  litigation,  or  the  relief  granted, 
and  if  the  attitude  of  the  person  in  question  is  unknown  and 
his  relation  to  the  subject  matter  is  such  that  plaintiff  has 
reason  to  believe  he  may  have  an  interest  either  in  the  subject 
matter  or  in  the  relief  granted,  the  safer  practice  is  to  join 
him  as  a  party  defendant.7 

It  is  well  settled  that  specific  performance  of  a  land  con- 
tract may  be  invoked  by  either  the  vendor  or  the  vendee,8  and 
the  wife  of  neither  need  be  joined  as  defendant,  nor  are  they 
in  fact  proper  parties  to  such  action  in  cases  where  they  have 
not  signed  the  land  contract  sought  to  be  enforced.9 

6.  Bridgeman  v.  Mclntyre,  150  essary  or  proper  to  a  complete  de- 
Mich.  78;  Ferres  v.  Snow,  124  Mich.  termination  of  the  cause.  Per- 
559.  sons  having  a  united  interest  must 

_    _         .,    ,   T  ..oo^i       t„   on       De    joined    on    the    same    side    as 

7.  Compiled  Laws   12361.     In  all  .J 

,.   .,  ..  „  ,  plaintiffs   or  defendants,  but  when 

equitable  actions,  all  persons  hav- 
ing an   interest  in   the   subject   of 
the  action  and  in  obtaining  the  re- 
lief demanded,  may  join  as  plain- 
tiffs, and  any  person  may  be  made  8.  See  section  104  ante, 
a  defendant  who  has  or  claims  an          9.  See  section  ante.     Solomon  v. 
interest    adverse    to    the    plaintiff.      Shewitz,  185  Mich.  620;   Phillips  v. 
any    one    refuses  to  join,  he   may      Stanich,   20   Mich.   369;    Bucholz   v. 
made  a  party  if  his  presence  is  nee-      Walker,  19  Mich.   244. 


any  one  refuses  to  join,  he  may 
for  such  reason  be  made  a  defend- 
ant. 


256 


THE  LAW  OF  LAND  CONTRACTS 


[§115 


If  a  husband  enters  into  a  land  contract  without  the  knowl- 
edge of  his  wife  and  she  afterwards  conveys  the  land  with  him 
to  a  third  party,  she  is  not  a  proper  party  defendant  in  an  action 
for  specific  performance  by  the  original  vendee,10  but  if  she 
had  knowledge  of  the  outstanding  contract  executed  by  her 
husband  then  she  would  be  a  proper  party  to  the  action.11  It, 
of  course,  follows  that  if  the  vendor  has  conveyed  the  property 
to  a  third  person  he  cannot  maintain  an  action  for  specific  per- 
formance of  the  contract.12 

§  116.  Specific    Performance    Substituted    Service.  —  The 

remedy  of  specific  performance  may  be  invoked  even  though 
the  defendant  is  non-resident  of  the  state  and  beyond  the  juris- 
diction of  the  court.  Our  statute  provides  a  method  of  sub- 
stituted service  and  the  courts  have  held  that  this  method  of 
service  is  sufficient  to  support  a  decree  of  specific  performance 
in  such  cases  as  the  defendant  does  not  come  into  court.  The 
decree  may  be  recorded  and  will  stand  as  a  conveyance  of  the 
property  involved.13 


10.  Solomon  v.  Shewitz,  Supra. 

11.  Solomon    v.    Shewitz,    Supra; 
Dailey  v.  Litchfield,  10  Mich.  20. 

12.  Brewer  v.  Dodge,  28  Mich.  359. 

13.  See  Pomeroy's  Equity  Jur., 
Sec.  1436. 

Specific  Performance — Service  By 
Publication 

Boswell's  Lessee  v.  Otis,  9  How. 
336.  A  bill  for  the  specific  perform- 
ance of  a  land  contract  was  filed 
In  Ohio  concerning  land  in  Ohio 
but  the  defendant  lived  in  Ken- 
tucky and  service  was  had  on  him 
by  publication  as  provided  in  the 
Ohio  Statutes. 

The  court  held  that  a  state  can 
provide  by  statute  for  service  by 
publication  in  such  cases.  That 
jurisdiction  is  acquired  in  one  of 
two  ways,  first  as  against  the  per- 
son of  the  defendant  by  the  service 
of    process;    or    secondly    by    pro- 


cedure against  the  property  of  the 
defendant  within  the  jurisdiction 
of  the  court.  In  the  latter  case 
the  defendant  is  not  personally 
bound  by  a  judgment  beyond  the 
property  in  question;  it  is  imma- 
terial whether  the  proceeding 
against  the  property  be  an  attach- 
ment or  a  bill  in  chancery.  It  must 
be  substantially  a  proceeding  in 
rem;  a  bill  for  the  specific  per- 
formance of  a  land  contract  is  not 
strictly  a  proceeding  in  rem,  but 
where  such  a  proceeding  is  au- 
thorized by  a  statute  on  publica- 
tion it  is  essentially  a  proceeding 
of  that  character. 

Felch  v.  Hooper,  119  Mass.  52. 
Bill  for  the  specific  performance  of 
a  land  contract  filed;  defednant  re- 
sided outside  of  the  state  but  per- 
sonal service  was  had  upon  him. 
Defendant  claimed  court  had  no 
jurisdiction. 


§117] 


SPECIFIC  PERFORMANCE 


257 


§  117.  Grantee  of  Vendor  as  Defendant. — If  the  grantee  of 
the  vendor  takes  the  title  from  the  vendor  for  value  without 
knowledge  of  the  prior  contract  he  can  retain  it  and  the  vendee 
has  no  remedy  against  him,14  but  would,  of  course,  have  his 
remedy  in  damages  against  the  vendor. 


The  court  held  that  under  the 
statute  providing  that  when  a  per- 
son is  seized  of  an  estate  upon  a 
trust,  express  or  implied,  and  is 
outside  the  state  and  not  amena- 
ble to  the  process  of  any  court 
therein  having  equity  powers,  this 
court  shall  have  power  to  order  a 
conveyance  to  be  made  and  may 
appoint  some  suitable  person  to 
convey  the  premises;  this  court 
has  adequate  power  to  enforce  the 
specific  performance  of  a  land  con- 
tract even  though  the  defendant 
resides  outside   the   state. 

Clem  v.  Given's  Ex'r,  106  Va. 
145.  Defendant  had  entered  into 
contract  with  plaintiff  for  the  sale 
of  certain  land  and  he  now  refuses 
to  convey.  Defendant  resided  out- 
side the  state.  Plaintiff  filed  a 
bill  for  specific  performance.  There 
was  a  statute  which  provided  that 
where  the  title  to  real  estate  was 
involved  and  the  owner  lived  out- 
side the  state  he  could  be  brought 
In  by  publication. 

The  court  held  that  a  state  has 
a  perfect  right  to  pass  such  a 
law;  that  a  state  has  control  over 
property  within  its  limits  and  the 
condition  of  ownership  of  real  es- 
tate therein,  whether  the  owner  be 
a  stranger  or  citizen  state  can  de- 
termine the  extent  of  a  stranger's 
title  to  real  estate  within  its  limits 
and  for  the  purpose  of  such  de- 
termination may  provide  any  rea- 
sonable method  of  imparting  notice. 

Minero  v.  Ross  &  Masterson,  138 


S.  W.  224.  Paragraph  20:  If  a 
suit  for  the  specific  performance  of 
a  land  contract  be  instituted  by 
the  vendee  who  is  offering  to  pay 
the  purchase  price,  the  court  hav- 
ing jurisdiction  of  the  land  but  the 
defendant  living  in  a  foreign  coun 
try  or  state  outside  the  jurisdic- 
tion of  the  court;  such  action  even 
though  the  defendant  were  served 
only  with  constructive  process 
would  be  regarded  as  an  action 
in  rem  rather  than  in  personam 
and  specific  performance  would  be 
enforced. 

Hollander  v.  Central  Metal  & 
Supply  Co.,  71  Atl.  442,  23  L.  R.  A. 
(N.  S.)  1135.  On  a  bill  filed  for 
the  specific  performance  of  a  land 
contract  where  the  defendant  was 
a  non-resident  of  the  state  and  serv- 
ice was  had  by  publication  the  de- 
fendant claimed  that  specific  per- 
formance was  an  action  in  per- 
sonam and  service  could  not  be  had 
by  publication. 

The  court  held  that  under  the 
state  statute  the  court  may  order 
notice  to  be  given  non-resident  de- 
fendants and  said  notice  may  be 
given  by  publication.  The  non-resi- 
dent cannot  be  compelled  to  exe- 
cute a  deed  but  the  court  may 
appoint  a  trustee  to  convey  the 
non-resident's  title  and  to  that  end 
the  proceedings  are  in  rem  and 
not  in  personam  and  therefore  sus- 
tainable by  publication. 

14.  Pomeroy  Equity  Jur.,  2nd  Ed., 
Sec.  2275. 


258 


THE  LAW  OF  LAND  CONTRACTS 


[§  H7 


If  the  assignee  of  the  vendor  take  a  conveyance  of  the  prop- 
erty with  notice  of  the  outstanding  contract,16  or  is  not  a  pur- 
chaser for  value  16  then  the  vendee  of  the  contract  may  en- 
force same  against  such  grantee.  On  the  question  of  notice 
it  has  been  frequently  held  that  possession  by  a  party  under 
a  land  contract  is  notice  to  the  world  of  his  rights  under  that 
contract,17  and  that  such  possession  may  be  either  in  person 
or  by  tenant,18  it  would  therefore  follow  that  if  the  vendee 
or  his  tenant  was  in  possession  under  the  land  contract  any 
purchaser  from  the  vendor  would  be  charged  with  notice  of 
the  vendee's  interest  in  the  contract. 

Unless  the  contract  contains  a  covenant  against  assignment, 
on  the  part  of  the  purchaser  his  vendee  or  assignee  may  en- 
force specific  performance  against  the  grantee  of  the  vendor, 
as,  whoever  takes  the  land,  takes  it  subject  to  the  terms  of 
the  outstanding  land  contract. 

§  118.  Specific   Performance   Vendor   Against   Assignee   of 

Vendee. — While  the  grantee  of  the  vendee  of  a  land  contract 
may  enforce  specific  performance  against  the  grantee  of  the 
vendor,  such  grantee  of  the  vendor  cannot  enforce  specific  per- 
formance against  the  vendee's  assignee,  nor  can  the  original 
vendor  enforce  specific  performance  against  the  assgnee  of  the 
vendee.19 

The  reason  for  the  rule  is  that  with  the  assignee  of  the 
vendee  there  is  no  privity  of  contract  nor  does  such  assignee 
hold  any  property  in  trust  for  the  vendor;  but  just  the  reverse 


15.  Lovejoy  v.  Potter,  60  Mich. 
95;  Grunnett  v.  Gingras,  77  Mich. 
869;  Bird  v.  Hall,  30  Mich.  374; 
Pomeroy  Eq.  Jur.,  2nd  Ed.  2275. 

16.  Rathbone  v.  Groh,  137  Mich. 
373;  Pomeroy  Eq.  Jur.,  2nd  Ed., 
Supra. 

17.  Seager  v.  Colley,  44  Mich.  14; 
Schmidt  v.  Steinback,  193  Mich. 
640;  Corry  v.  Smalley,  106  Mich. 
260;  Woodward  v.  Clark,  15  Mich. 
104;  Russel  v.  Sweezey,  22  Mich. 
235;  Farwell  v.  Johnston,  34  Mich. 
342;  Dunks  v.  Fuller,  32  Mich.  242; 


McKee  v.  Wilcox,  11  Mich.  358; 
Allen  v.  Cadwell,  55  Mich.  8;  Horn- 
mel  v.  Devinney,  39  Mich.  523; 
Michie  v.  Ellair,  54  Mich.  518;  Stev- 
ens v.  Castel,  63  Mich.  Ill;  Moore 
v.  Kenockee  Tp.,  75  Mich.  332; 
Schweiss  v.  Woodruff,  73  Mich.  473; 
Lambert  v.  Weber,  83  Mich.  395. 

18.  Corry  v.  Smalley,  supra, 
where  the  actual  possession  was 
by  the  tenant. 

19.  Pomeroy  Equity  Jur.,  2nd  Ed. 
2276. 


§  120]  SPECIFIC  PERFORMANCE  259 

is  true  with  the  vendor  or  his  assignee  who  hold  the  property 
as  security  for  the  vendee  and  his  assigns.  The  effect  of  an 
assignment  of  a  land  contract  in  violation  of  the  express  terms 
thereof  is  treated  elsewhere  in  this  work.20 

§  119.  Specific  Performance  Against  Assignees  in  Bank- 
ruptcy.— In  accordance  with  the  principles  stated  in  the  pre- 
ceding sections,  an  assignee  or  trustee  in  bankruptcy  of  the 
vendee  is  not  subject  to  specific  performance  at  the  instance  of 
the  vendor  or  his  assigns,21  but  the  reverse  is  true  with  the 
vendor  or  his  assignee  in  bankruptcy  whether  a  part  or  all  of 
the  purchase  price  has  been  paid,  he  is  nevertheless,  at  the 
instance  of  the  vendee,  or  his  assigns,  obliged  to  convey  the 
property  in  accordance  with  the  terms  of  the  contract.22 

§  120.  Evidence  —  Practice  —  Miscellaneous  Decisions.  — 

Where  the  bill  of  complaint  and  the  memorandum  of  the  sale 
describes  the  property  by  street  number,  it  is  permissible  to 
insert  the  correct  legal  description  in  the  final  decree.23  Where 
the  wife  brought  the  action,  but  the  decree  is  taken  in  favor 
of  both  husband  and  wife,  it  was  amendable  in  the  Supreme 
court  to  conform  to  the  facts.24  Where  the  delay  beyond  a 
stipulated  time  was  due  to  the  defendant's  inability  to  furnish 
an  abstract,  such  delay  affords  no  grounds  for  refusal  on  his 
part  to  complete  the  sale.25  Want  of  understanding  of  the 
terms  of  a  contract  is  not  a  defense  to  specific  performance  so 
long  as  the  plaintiff  was  not  the  cause  of  such  misunderstand- 
ing and  same  was  not  communicated  to  him,26  nor  is  conversa- 
tion between  defendant's  agent  or  his  attorney  admissible  on 
the  question  of  her  understanding,  in  the  absence  of  plaintiff,27 
a  motion  to  dismiss  is  the  proper  practice  to  challenge  the  suffi- 

20.  Chap.  Forfeiture  of  Land  Con-  24.  Bailer  v.   Spivack,   213   Mich, 
tracts.                                                              436. 

21.  Pomeroy    Eq.    Jur.,    2nd    Ed.  25.  Standard    Oil   v.    Murray,   214 

2278-2279;    Pearce    v.    Bastable,    L.      Mich.  297. 

R    Ch    1"-125 

26.  Standard   Oil  v.   Murray,   214 

22.  Pomeroy    Eq.    Jur.,    2nd    Ed.,       Mich   299 

Supra. 

23.  Bailer  v.    Spivack,   213    Mich 
436. 


27.  Standard   Oil    v.    Murray,   214 
Mich.  299. 


260 


THE  LAW  OF  LAND  CONTRACTS 


[§120 


ciency  of  a  bill  of  complaint  for  specific  performance  on  the 
ground  that  the  plaintiff  has  an  adequate  remedy  at  law.28 

Where  the  contract  is  conceded  to  have  been  made  of  two 
separate  memoranda,  it  was  not  error  to  exclude  one  from  the 
evidence  unless  both  were  offered.29 

Any  attempt  to  modify  a  written  agreement,  if  such  modi- 
fication is  made  on  Sunday  will  be  disregarded  and  held  to  be 
void.30  If  language  is  found  in  a  purported  copy  of  an  option 
not  contained  in  the  original  as  recorded  and  relied  upon,  such 
language  will  be  disregarded.31 

If  the  premises  have  been  sold  to  a  bona  fide  purchaser  pend- 
ing the  action  by  vendor,  the  court  may  award  a  decree  for 
damages  against  the  defendant.32 

§  121.  Specific  Performance  —  Illustrative  Cases  —  Relief 
Granted. — We  have  included  in  the  note  to  this  section  a  brief 
digest  of  the  late  Michigan  cases  from  Volume  189  to  213, 
inclusive,  where  the  relief  by  way  of  specific  performance  has 
been  granted.33 


28.  Bradley  v.  May,  214  Mich. 
194. 

29.  Dinnen  v.  Bloomfield  Hills 
Co.,  214  Mich.  55. 

30.  Watkins  v.  Miner,  214  Mich. 
380. 

31.  Watkins  v.  Miner,  214  Mich. 
380. 

32.  Marussa  v.  Timerowski,  204 
Mich.  271. 

Specific  Performance  —  Relief 
Granted. 

33.  Hubbel  v.  Ohler,  213  Mich. 
664.  Relief  from  forfeiture  and 
specific  performance  granted  under 
certain   conditions. 

Woodward  v.  Porter,  213  Mich. 
314.  Held  bill  of  complaint  suffi- 
cient for  specific  performance. 

Lyle  v.  Munson,  213  Mich.  250. 
Contract  followed  by  part  perform- 
ance upheld  although  made  on  Sun- 
day. Court  invoked  the  principle 
of  equitable  estoppel. 


Bland  v.  Bland,  213  Mich.  549. 
Holding  wife  authorized  to  have 
antenuptial  contract  specifically 
performed. 

Niemetta  v.  Teakle,  210  Mich. 
590.  Specific  performance  compell- 
ing execution  of  mortgage  on  land 
situated  in  other  county. 

Engle  v.  Engle,  209  Mich.  275. 
Partly  performed  oral  contract  spe- 
cifically performed  also  against  de- 
fendant's wife,  who  was  a  party  to 
the  agreement. 

Nickerson  v.  Nickerson,  209  Mich. 
134.  Oral  agreement  partly  per- 
formed. 

Hager  v.  Rey,  209  Mich.  194. 
Involving  question  of  tender,  and 
laches  in  making  payment. 

McCrilles  v.  Sutton,  207  Mich. 
58.  Relief  granted  in  contract  be- 
tween foster  parents  and  plaintiff 
as  against  heirs  at  law  of  estate  of 
said  foster  parents. 

Pendergart    v.    Pendergart,    206 


§121] 


SPECIFIC  PERFORMANCE 


261 


Mich.  526.  Parol  contract  involv- 
ing acts  and  declarations  of  de- 
ceased persons,  family  dealings, 
etc. 

Marussa  v.  Temerowski,  204 
Mich.  271.  Where  plaintiffs  were 
entitled  to  decree  but  defendants 
could  not  perform  because  property 
had  been  sold  to  bona  fide  pur- 
chaser, decree  for  damages  held 
equitable. 

Kendall  v.  Chase,  203  Mich.  660. 
Involving  conveyance  of  farm  in 
consideration  of  plaintiff's  support 
during  her  natural  life  as  evidenced 
by  agreement.  Plaintiff  granted  re- 
lief even  though  it  exhaust  the 
land  in  so  doing. 

George  v.  Schuman,  202  Mich. 
241.  Involving  option  and  ade- 
quacy of  consideration. 

Pearson  v.  Gardner,  202  Mich. 
360.  Contract  itself  not  sufficient 
under  statute  of  frauds,  but  ven- 
dees had  paid  part  of  the  pur- 
chase price  and  taken  possession 
and  exercised  acts  of  possession 
and  ownership. 

Fowler  v.  Isbell,  202  Mich.  572 
Oral  contract  for  sale  of  land  but 
plaintiff  had  performed  her  part 
under  section^  11979,  3  Comp.  Laws 
1915. 

Barker  v.  Finley,  200  Mich.  166. 
This  involved  credit  for  $1,000.00  ou 
contract,  which  $1,000.00  had  not 
been  paid  and  which  was  never  in- 
tended to  be  paid. 

Kerwin  Machine  Co.  v.  Baker,  199 
Mich.  122.  Involving  verbal  agree- 
ment in  connection  with  written 
contract,  which  verbal  terms  could 
not  be  complied  with.  Court  held 
the  written  contract  was  definite 
in  its  terms  and  not  changeable  by 
parol  evidence. 

Gates  v.  McLaulin,  199  Mich.  438. 


Specific  performance  will  be  de- 
creed where  there  has  been  an 
entry  upon  land  and  part  perform- 
ance of  the  contract.  Green  v. 
Reder,    199-594. 

The  fact  that  the  real  estate  has 
increased  in  value  is  not  a  suffi 
cient  ground  for  denial  of  a  de- 
cree for  specific  performance  and 
equity  may  decree  the  performance 
of  an  agreement  to  execute  a  land 
contract.  Ogooshevitz  v.  Arnold. 
197-203. 

Specific  performance  of  an  oral 
agreement  for  a  lease  will  be  de- 
creed where  the  evidence  showed 
plaintiff  made  certain  improve- 
ments and  rented  additional  build- 
ings, which,  according  to  the  oral 
agreement,  would  entitle  plaintiff 
to  an  extension  of  the  lease  for 
a  certain  period.  Charlet  v.  Teackle. 
197-426. 

A  vendee  appearing  at  the  ap- 
pointed time  and  place  ready  and 
willing  to  pay,  and  vendor  failed 
to  appear  a  sufficient  tender  was 
made  to  entitle  vendee  to  specific 
performance  of  a  land  contract,  and 
it  was  not  necessary  that  the  ven- 
dee tender  a  deed  to  be  executed 
by  the  vendor.  Fraser  v.  Hovey. 
195-161. 

Specific  performance  will  be  de- 
creed of  a  lease  of  premises  which 
gives  plaintiff  the  right  to  purchase, 
where  he  made  valuable  improve- 
ments on  the  premises  and  built 
up  a  good  business,  and  it  would 
be  hard  to  purchase  other  premises 
nearby,  and  difficult  to  compensate 
plaintiff  in  dollars,  although  value 
of  premises  had  increased  since 
execution  of  lease.  Nowicki  v.  Ko 
petczak,  195-678. 

Specific  performance  of  a  land 
contract   was   decreed   and   a   divi- 


262 


THE  LAW  OF  LAND  CONTRACTS 


[§122 


§  122.  Specific  Performance  —  Illustrative  Cases  —  Relief 
Denied. — We  have  included  in  the  note  to  this  section  a  brief 
digest  of  the  late  Michigan  cases  from  Volumes  189  to  213, 
inclusive,  where  the  relief  by  way  of  specific  performance  has 
been  denied.34 


eion  of  the  balance  of  the  pur- 
chase price  ordered  where  the  ven- 
dors, husband  and  wife,  had  both 
died,  and  the  representatives  of 
their  estates  were  in  disagreement 
as  to  division  of  the  fund.  Flam- 
mer  v.  Cullen,  194  Mich.  585. 

Specific  performance  of  an  oral 
agreement  to  convey  defendant's 
farm  In  consideration  of  services, 
etc.,  will  be  granted.  Woodward  v. 
Walker,  192-188. 

Specific  performance  of  a  con- 
tract, fully  performed  on  one  side 
by  plaintiffs,  to  convey  certain 
premises  if  plaintiffs  would  give 
up  their  farm,  and  move  into  de- 
fendant's home  and  make  certain 
improvements,  was  decreed,  al- 
though it  was  not  in  writing.  Friend 
v.  Smith,  191-99. 

Specific   Performance — Relief 
Denied. 

34.  Silver  v.  Shulman,  213  Mich 
211.      Relief    denied    because    con- 
tract made  on  Sunday. 

Morrison  v.  Meister,  212  Mich. 
516.  Contract  signed  by  only  one 
of  several  joint  owners. 

Sayers  v.  McKeever,  211  Mich. 
249.  Relief  denied.  Plaintiff  had 
failed  to  pay  taxes  on  property 
and  had  no  agreement  relative  to 
taxes.  She  refused  to  pay  same 
and  court  held  title  encumbered  by 
lien. 

Woods  Land  Co.  v.  Beeman,  211 
Mich.  360.  Option  not  enforced, 
contract  procured  by  overreaching 
on  plaintiff's  part. 


Schoenfeld  v.  Kemter,  211  Mich. 
464.  Relief  denied;  judgment  had 
been  rendered  by  Circuit  Court 
Commissioner  and  writ  of  restitu- 
tion granted  previous  to  filing  of 
bill  of  complaint.  Plaintiff  held 
no  equities. 

Slatkin  v.  Schumer,  210  Mich. 
513.  Relief  denied.  Bill  dismissed 
because  time  had  expired,  and  other 
parties  acquired  interests  in  the 
property. 

Harrison  v.  Eassom,  208  Mich. 
685.  Denied  because  acts  of  part 
performance  by  plaintiffs  and  per 
mitted  by  defendants  were  not  of 
kind  to  create  strong  equities  in 
plaintiff's  favor. 

Oakman  v.  Esper,  206  Mich.  315. 
Denied  when  plaintiff  had  defaulted 
and  property  had  been  sold  to 
others. 

Lozon  v.  McKay,  203  Mich.  364. 
Vendee  denied  relief  after  forfeit- 
ure of  land  contract  unless  relieved 
of  forfeiture  (decree  conditional) 
Law  v.  McKechnie,  202  Mich.  284. 
Involving  option  to  purchase  dur 
ing  term  of  lease.  Specific  per- 
formance denied  because  tender  of 
full  amount  and  demand  for  deed 
had  not  been  made  according  to 
terms. 

Zigen  v.  Rosier,  200  Mich.  328. 
Involves  contract  for  sale  of  land 
held  by  husband  only. 

Bradway  v.  Miller,  200  Mich.  648. 
Defendant  bought  on  condition  that 
the  abstract  show  a  merchantable 
title.     Same   not   shown;    plaintiffs 


§  123]  SPECIFIC  PERFORMANCE  263 

§  123.  Specific  Performance — Bill  of  Complaint  Agreement 
in  Writing. 

(Address  and  Introduction.) 

1.  That  on  or  about  the day  of ,  19 , 

this  plaintiff  and  A.  B.  entered  into  a  certain  contract  in  writ- 
ing for  the  sale  by  the  said  A.  B.  to  plaintiff  of  that  certain 
piece  or  parcel  of  land,  situate  in  (describe  the  land),  upon  the 
following  terms,  and  conditions :  (Here  set  forth  the  essential 
terms  of  the  contract,  especially  the  provisions  of  the  contract 
which  have  been  violated  by  the  defendant),  a  true  copy  of 
which  contract  is  hereto  attached,  marked  Exhibit  "A"  and 
made  a  part  hereof. 

2.  And  that  this  plaintiff  has  in  all  respects  carried  out  his 
part  of  the  said  contract  and  has  made  payments  on  the  said 
purchase  money  therein  mentioned  and  the  interest  thereon  as 
follows:    (State  payments  and  time  of  each),  and  that  on  the 

day  of ,  19 ,  there  was  owing  on  the 

said  agreement  by  this  plaintiff  to  the  said  A.  B.  for  principal 

and  interest  the  sum  of dollars  and  no  more,  and 

that  on  the  last  mentoned  day  at in  the  County  of 

denied  right  to  foreclose;  contract  Where  plaintiff  refused  to  accept 
rescinded  and  defendants  decreed  a  form  of  contract  in  accord  with 
the  money  they  had  paid  thereon,  a  previous  memorandum  of  agree- 
Where  time  of  payment  is  made  ment  entered  into  with  the  de- 
the  essence  of  the  contract,  spe-  fendant  and  allowed  the  defendant 
cific  performance  was  denied  the  to  sell  to  another  person,  plaintiff 
vendee,  who  had  taken  no  steps  was  not  entitled  to  specific  per- 
until  five  months  after  having  re-  formance.  Ickler  v.  Mullen,  196- 
ceived  notice  of  termination  of  the  617. 

agreement  to  extend  time  for  pay-  Specific  performance  will  be  de- 
ment to  remove  certain  restric-  nied  where  the  legal  and  equitable 
tions.  Tatton  v.  Bryant,  198-515.  rights  of  the  real  parties  in  interest 
Specific  performance  will  be  de-  would  be  disregarded,  in  enforcing 
nied  in  favor  of  a  purchaser  where  a  parol  agreement  of  the  trustee 
he  is  a  clever  and  financially  ir-  to  convey  on  the  tender  of  the 
responsible  promoter  and  so  framed  agreed  purchase  price  Canton  v 
the  contract  that  it  permits  of  de-  Irvine,  194-165. 

lays    in    payment,    and    the    sellers  Specific  performance  will  not  be 

are    ignorant    foreign    people    and  granted   where   the   court  can  not, 

purchaser  does  not  come  in  equity  on    both    sides,    enforce    the    con- 

with  clean  hands.    Lake  Erie  Land  tract  in  all  its  material  parts.     Bi- 

Co.  v.  Chillnski,  197-215.  laiisky  v.  Hogan,  190-463. 


264  THE  LAW  0F  LAND  CONTRACTS  [§  123 

,  in  this  state,  this  plaintiff  tendered  and  offered  to 

the  said  A.  B.  personally  the  said  sum  of dollars  in 

lawful  money  of  the  United  States,  and  then  and  there  re- 
quested the  said  A.  B.  to  receive  and  accept  the  same  in  pay- 
ment of  the  amount  due  on  the  said  contract  and  agreement. 

3.  And  this  plaintiff  then  and  there  had  and  presented  to 
the  said  A.  B.  the  draft  of  a  deed  of  conveyance  of  the  said 
land  in  fee  simple  to  plaintiff  and  then  and  there  requested  the 
said  A.  B.  to  execute  the  same  and  to  deliver  the  same  when 
executed  to  this  plaintiff,  but  so  to  do  the  said  A.  B.  although 
then  well  able  to  convey  the  said  land  to  this  plaintiff  and  to 
give  this  plaintiff  a  good  title  thereto,  and  although  the  amount 
so  tendered  and  offered  by  this  plaintiff  to  him  was  ample  and 
sufficient  to  pay  and  satisfy  the  full  amount  due  and  owing  to 
him  on  the  said  agreement,  the  said  A.  B.  then  and  there  abso- 
lutely refused  to  comply  with  this  plaintiff's  said  reasonable 
request,  and  absolutely  refused  to  receive  or  accept  the  said 
money  so  tendered  and  offered  to  him  as  aforesaid  on  the  said 
agreement,  although  making  no  claim  that  the  same  was  in- 
sufficient in  amount,  and  absolutely  refused  to  make  or  execute 
the  said  deed  of  conveyance,  or  any  deed  of  conveyance  what- 
ever, of  the  said  land  to  this  plaintiff,  and  the  said  A.  B.  has 
ever  since  that  time  continually  refused  and  still  does  refuse 
to  accept  or  receive  the  said  money  and  to  convey  the  said  land 
to  this  plaintiff  in  any  manner,  as  in  equity  and  good  con- 
science he  ought  to  have  done. 

1.  Wherefore,  plaintiff  prays: 

(If  answer  under  oath  is  desired  so  state.)  If  not  specifi- 
cally requested  will  be  deemed  waived. 

2.  And  that  said  A.  B.  may  be  decreed  to  specifically  perform 
his  part  of  the  said  agreement,  this  plaintiff  being  ready  and 
willing,  and  hereby  offering  to  specifically  perform  the  same 
upon  his  part. 

3.  And  that  the  said  A.  B.  may  come  to  an  account  with  this 
plaintiff  touching  the  amount  due  and  owing  by  this  plaintiff 
to  him,  the  said  A.  B.,  on  the  said  agreement,  this  plaintiff 
being  ready  and  willing  and  hereby  offering  to  pay  him  the  full 
amount  that  shall  be  found  due  to  him  on  such  an  accounting, 
and  this  plaintiff  asks  leave  to  pay  and  deposit  the  same  with 


X  1241  SPECIFIC  PERFORMANCE  265 

the  register  of  this  court  for  the  said  A.  B.,  to  be  paid  to  him 
according  to  the  order  and  direction  of  this  court. 

4.  And  that,  upon  such  payment  to  the  said  A.  B.,  or  to  the 
register  of  this  court  for  the  said  A.  B.,  he,  the  said  A.  B.,  be 
decreed  to  convey  to  this  plaintiff  by  a  good  and  sufficient  deed 
of  conveyance  in  the  law,  duly  executed  and  acknowledged,  all 
and  singular  the  said  land  in  fee  simple. 

5.  And  that  upon  such  payment  to  the  said  A.  B.  or  to  the 
register  of  this  court  as  aforesaid,  this  plaintiff  be  decreed  to 
be  the  owner  of  the  said  land  and  premises,  and  of  each  and 
every  part  and  parcel  thereof,  in  fee  simple,  and  that  the  said 
A.  B.  be  decreed  to  be  divested  of  all  right,  title  and  interest 
therein,  and  that  this  plaintiff  have  leave  to  cause  such  decree 
to  be  recorded  in  the  office  of  the  register  of  deeds  of  the  said 

County  of as  a  conveyance  of  all  the  said  land  and 

premises  from  the  said  A.  B.  to  this  plaintiff. 

6.  And  that  the  said  A.  B.  thereupon  deliver  possession  of 
all  and  singular  the  said  land  and  premises  to  this  plaintiff. 

7.  And  that  this  plaintiff  may  have  such  further,  other  or 
different  relief  in  the  premises  as  shall  be  agreeable  to  equity 
and  good  conscience. 

And  the  plaintiff  will  ever  pray,  etc. 

(Signature  of  Plaintiff.) 
(Signature  of  Counsel.) 

§  124.  Decree  for  Specific  Performance  of  Written  Contract. 

(Caption.) 

At  a  session  of  said  court  held  in  the  courthouse  at  the  City 
of . ,  State  of  Michigan. 

Present  the  Honorable , 

Circuit  Judge. 

This  cause  coming  on  to  be  heard  upon  the  pleadings  and 
proofs  in  open  court  and  the  court  having  heard  the  arguments 
of  counsel  for  the  respective  parties  and  being  fully  advised 
in  the  premises  and  it  appearing  to  the  court  that  a  good  title 
can  be  made  by  the  plaintiff  to  the  premises  described  in  the 

agreement  between  the  parties  to  this  cause,  dated  the...- 

day  of 

It  is  therefore  ordered,  adjudged  and  decreed  and  this  court 
does  hereby  order,  adjudge  and  decree  that  said  agreements 


266  THE  LAW  0F  LAND  CONTRACTS  [§  124 

so  made  and  entered  into  by  and  between  the  plaintiff  and  the 
defendant  and  duly  proved  in  this  cause,  be  specifically  per- 
formed; and, 

It  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff 
execute  and  deliver  to  the  defendant  a  proper  and  sufficient 
conveyance  of  the  real  estate  described  in  said  agreement  be- 
tween the  parties,  to-wit:  (Here  insert  legal  description  of 
premises). 

It  is  further  ordered,  adjudged  and  decreed  that  the  defend- 
ant upon  the  tender  or  delivery  to  him  of  such  conveyance  pay 

unto  the  plaintiff  the  sum  of dollars,  the  balance  of 

the  purchase  money  of  said  premises  together  with  interest 
thereon  at  the  rate  of  6%  from  the day  of 

It  is  further  ordered,  adjudged  and  decreed  that  the  plain- 
tiff pay  to  the  defendant  the  cost  of  this  suit  to  be  taxed  and 
that  the  plaintiff  shall  have  execution  against  the  defendant 
for  said  sum  of dollars,  the  balance  of  said  pur- 
chase money  aforesaid  together  with  interest  and  for  the  cost 
to  be  taxed  as  aforesaid  according  to  the  rule  and  practice  of 
the  courts  and  further  that  either  of  the  parties  is  at  liberty 
to  apply  to  this  court  as  the  action  may  require  in  the  carry- 
ing out  of  this  decree. 


Circuit  Judge. 

§  125.  Specific   Performance  —  Bill   of   Complaint  —  Verbal 
Agreement. 

(Address  and  Introduction.) 

1.  That  on  or  about  the day  of one 

A.  B.  was  the  owner  in  fee  simple  of  all  that  (here  describe 
the  land),  and  being  such  owner,  the  said  A.  B.  made  a  verbal 
agreement  with  this  plaintiff  whereby  the  said  A.  B.  agreed  to 
sell  and  convey  to  this  plaintiff  all  said  land  and  premises  in  fee 

simple  for  the  sum  of dollars,  to  be  paid  as  follows: 

(Here  state  specifically  the  terms  of  payment),  together  with 

interest  at  the  rate  of per  cent,  per  annum,  payable 

annually,  on  the  whole  sum  from  time  to  time  when  paid,  and 
to  give  to  this  plaintiff  immediate  possession  thereof.  Said 
agreement  further  provided  that  this  plaintiff  was  to  pay  all 


§  125]  SPECIFIC  PERFORMANCE  267 

the  taxes  and  assessments  that  should  thereafter  be  assessed 
on  said  land ;  and  this  plaintiff  thereby  agreed  to  purchase  the 
said  land,  to  pay  for  the  same  in  the  same  manner  aforesaid, 
and  to  comply  in  all  respects  to  the  terms  and  conditions  to  the 
foregoing  verbal  agreement,  but  no  written  agreement  or 
memorandum  was  made  or  signed  by  the  said  A.  B.  or  by  this 
plaintiff. 

2.  And  that  in  pursuance  of  the  said  agreement  the  said  A. 

B.  then  on  or  about  the  said  day  of 19 ,  delivered 

possession  of  the  said  land  and  premises  to  this  plaintiff,  who 
then  entered  into  possession  and  occupation  thereof  and  of  the 
whole  thereof,  and  ever  since  that  time  this  plaintiff  has  been 
and  still  is  in  such  possession  and  occupation  in  accordance 
with,  and  relying  upon  the  said  agreement. 

3.  And  that  in  accordance  with  the  said  agreement  this  plain- 
tiff has  paid  to  the  said  A.  B.,  the  said  sum  of dollars, 

parcel  of  said  purchase  money  at  the  expiration  of  one  year 

from  said  first  mentioned  day,  and  the  said  sum  of 

dollars,  parcel  of  said  purchase  money  at  the  expiration  of  two 
years  therefrom,  and  also  paid  the  interest  as  provided  in  and 
by  the  said  verbal  agreement,  and  the  said  A.  B.  accepted  such 
payments  so  made  as  payments  made  in  accordance  with  said 
agreement,  and  this  plaintiff  has  also  paid  and  satisfied  all 
taxes  and  assessments  that  have  been  assessed  on  said  land 
since  the  time  of  the  making  of  the  said  agreement  in  accord- 
ance therewith,  and  has  hitherto  fully  performed  the  said 
agreement  on  his  part. 

4.  That  during  the  time  this  plaintiff  has  been  in  possession 
of  said  land  as  aforesaid,  and  relying  wholly  upon  said  agree- 
ment, he  has,  at  his  own  expense,  built  and  erected  thereon 
the  following  improvements  (here  state  in  detail  the  character 
of  the  improvements  made),  at  an  expense  of dol- 
lars, and  has  treated,  managed  and  used  said  land  as  his  own 
property,  all  with  the  knowledge  and  consent  and  acquiescence 
of  said  defendant  A.  B. 

5.  That  this  plaintiff  has  fully  performed  his  portion  of  said 
agreement,  and  has  complied  with  the  terms  thereof,  and  on  the 

day  of ,  plaintiff  applied  to  the  said  A.  B. 

and  offered  then  and  there  to  pay  him  the  sum  of 


268  THE  LAW  OF  LAND  CONTRACTS  [§  125 

dollars,  being  the  remainder  of  the  purchase  money  provided 
by  said  contract,  together  with  all  interest  thereon,  and  then 
and  there  requested  the  said  A.  B.  to  receive  and  accept  the 
same  to  convey  the  said  land  and  premises  to  this  plaintiff  by 
a  good  and  sufficient  deed  of  conveyance,  as  in  and  by  the  said 
agreement  he  had  agreed  to  do;  and  this  plaintiff  then  also 
presented  to  the  said  A.  B.  the  draft  of  a  deed  of  conveyance 
in  fee  simple,  and  in  the  presence  of  a  notary  public,  whose 
presence  was  procured  by  this  plaintiff ;  this  plaintiff  then  re- 
quested the  said  A.  B.  to  accept  the  said  money  so  offered  as 
aforesaid  and  to  execute  the  said  deed  and  to  acknowledge  the 
execution  thereof  before  the  said  notary,  and  this  plaintiff 
well  hopes  that  the  said  A.  B.  would  have  then  received  and 
accepted  the  said  money  so  tendered  and  offered,  and  would 
have  executed  and  acknowledged  the  said  deed,  as  in  justice 
and  equity,  he  ought  to  have  done,  but  so  to  do  the  said  A.  B. 
then  utterly  refused,  and  thenceforward  has  continually  re- 
fused and  still  refuses,  although  he,  the  said  A.  B.,  still  holds 
the  title  to  the  said  land  in  his  own  name  and  is  well  able  to 
convey  the  same  as  aforesaid. 

6.  That  this  plaintiff  has  always  been  ready  and  willing  to 
sell  his  right  and  willing  to  perform  this  said  agreement  fully 
and  specifically,  and  hereby  tenders  to  the  said  A.  B.,  defend- 
ant, all  moneys,  principal  as  well  as  interest,  which  may  be 
found  to  be  due  and  owing  him  on  said  agreement. 

Wherefore,  plaintiff  prays : 

1.  The  said  A.  B.  may  be  decreed  to  specifically  perform  the 
said  agreement  and  contract  on  his  part. 

2.  That  an  account  may  be  taken  of  the  amount  due  and 
owing  by  this  plaintiff  to  the  said  A.  B.  on  said  agreement 
for  the  purchase  money  aforesaid,  with  accrued  interest  there- 
on, and  plaintiff  hereby  offers  to  pay  to  the  said  A.  B.  forth- 
with the  full  sum  found  to  be  owing  thereon,  and  in  case  the 
said  A.  B.  shall  refuse  to  receive  or  accept  the  same,  plaintiff 
prays  leave  to  deposit  said  payment  with  the  register  of  this 
court  to  be  paid  to  the  said  A.  B.  as  this  court  shall  direct. 

3.  That  upon  the  payment  to  the  said  A.  B.,  or  to  the  register 
of  this  court,  this  plaintiff  be  decreed  to  be  the  owner  of  said 
lands  and  premises,  and  of  each  and  every  part  thereof,  and 


§1261 


SPECIFIC  PERFORMANCE  269 


that  such  decree  may  stand  as  a  conveyance  of  said  property, 
and  that  plaintiff  shall  have  leave  to  cause  such  decree  to  be 

recorded  in  the  office  of  the  register  of  deeds  of 

County,  as  a  conveyance  to  him  of  said  land  and  premises. 

4.  That  this  plaintiff  may  have  such  further  or  such  other 
or  different  relief,  as  shall  be  agreeable  to  equity  and  good 
conscience  and  the  plaitniff  will  ever  pray. 


Signature  of  Plaintiff. 


Attorney  for  Plaintiff. 

§  126.  Specific  Performance — Bill  of  Complaint  by  Vendee 
Against  Administrator  and  Heirs  of  Vendor. 

(Address  and  Introduction.) 

1.  That  on  or  about  the day  of 19 , 

this  plaintiff  entered  into  a  written  contract  during  the  life- 
time of  one  A.  B.,  then  being  the  owner  of  his  own  right  in  fee 
simple  of  that  certain  piece  or  parcel  of  land  (here  describe  it) , 
for  the  sale  of  said  land  to  this  plaintiff  upon  the  following 
terms  and  conditions :  (Here  set  forth  the  essential  terms  of 
the  contract,  especially  the  provisions  of  the  contract  which 
have  been  violated  by  the  defendant),  a  true  copy  of  which 
contract  is  hereto  attached,  marked  Exhibit  "A"  and  made  a 
part  hereof. 

2.  That  this  plaintiff  has  fully  performed  his  part  of  the 
said  agreement  up  to  the  time  of  the  death  of  the  said  A.  B. 
and  has  duly  paid  the  taxes  assessed  on  the  said  land  and  on 
every  part  thereof  and  (state  such  items  of  performance  by 
plaintiff  as  are  material) . 

3.  That  after  the  making  of  the  said  agreement  and  on  or 

about  the  day day  of ,   19 ,  the  said 

A.  B.  died  intestate  and  that  during  his  lifetime,  he,  the  said 
A.  B.,  never  made  any  conveyance  of  the  said  land  or  any  part 
thereof  to  this  plaintiff  and  died  seized  thereof,  and  that  the 
said  A.  B.  left  a  widow,  C.  D.,  and  two  children,  viz. :  E.  F.  and 
L.  H.,  all  of  whom  are  minors  under  the  age  of  twenty-one 
years,  and  who  are  the  only  heirs  of  the  said  A.  B.,  and  that 

S.  K.  of has  been  by  the  Probate  Court  of  the  county 

of ,  duly  appointed  administrator  of  the  estate  of 


270  THE  LAW  OF  LAND  CONTRACTS  [§  126 

the  said  A.  B.,  deceased,  but  no  person  as  yet  has  been  ap- 
pointed guardian  of  the  said  minor  children,  as  appears  by  the 
records  and  files  of  the  said  Probate  Court,  whereto  reference 
is  prayed. 

4.  That  this  plaintiff  is  desirous  of  obtaining  a  conveyance 
of  the  said  lands  and  real  estate  pursuant  to  the  terms  of  said 
agreement  between  himself  and  the  said  A.  B.,  deceased,  and 
is  ready  and  willing  and  hereby  offers  to  pay  for  the  same  the 
full  amount  of  the  purchase  money  now  remaining  unpaid 
thereon,  with  all  accrued  interest,  as  provided  in  the  said 
agreement. 

5.  That  he  has  made  application  to  the  said  C.  D.,  the  widow 
of  the  said  A.  B.,  deceased,  and  has  ascertained  that  she  is 
willing  to  release  her  right  of  dower  in  the  said  land  and 
premises  upon  having  paid  to  her  an  amount  equal  to  the 
present  value  of  her  said  right  of  dower.  But  by  reason  that 
the  said  A.  B.  died  intestate  and  his  heirs  aforesaid  are  not  of 
full  age,  there  is  no  person  who  has  legal  authority  to  execute 
a  deed  whereby  to  convey  the  said  land  and  premises  in  full  to 
this  plaintiff. 

WHEREFORE,  Plaintiff  prays : 
(If  answer  under  oath  is  desired  so  state.)36 

I.  That  the  said  defendants  may  be  decreed  to  specifically 
perform  the  said  agreement  entered  into  as  aforesaid  between 
the  said  A.  B.  and  this  plaintiff. 

II.  That  an  account  may  be  taken  of  the  amount  due  and 
owing  by  this  plaintiff  upon  the  said  agreement,  and  that  this 
plaintiff  have  leave  to  bring  the  amount  so  found  to  be  owing 
by  him  into  this  court  and  deposit  the  same  with  the  register 
of  this  court,  to  be  paid  to  the  said  defendants  in  such  manner 
as  this  court  shall  by  its  decree  direct. 

III.  That  upon  depositing  the  amount  so  found  to  be  due  as 
aforesaid  with  the  register  of  this  court,  this  plaintiff  be  de- 
creed to  be  the  owner  of  the  said  land  and  premises  in  his 
own  right,  in  fee  simple,  in  the  same  manner  as  if  the  same 
had  been  conveyed  to  him  by  the  said  A.  B.  in  his  lifetime, 

35.     In   case   answer  under  oath      Co.  v.  Kent  Circuit  Judge,  115  Mich, 
is  not  specifically  requested  it  will      652;    Chancery  Rule   25. 
be    deemed    waived.      World    Mfg. 


§  127]  SPECIFIC  PERFORMANCE  271 

in  the  manner  provided  in  the  said  agreement,  and  that  this 
plaintiff  have  leave  to  cause  such  decree  to  be  recorded  in  the 

office  of  the  register  of  deeds  of  the  county  of ,  as  a 

conveyance  to  him  of  the  said  land  and  premises. 

IV.  And  that  this  plaintiff  may  have  such  further  or  such 
other  relief  in  the  premises  as  shall  be  agreeable  to  equity  and 
good  conscience. 

And  the  plaintiff  will  ever  pray,  etc. 

(Signature  of  Plaintiff.) 
(Signature  of  Counsel.) 

§  127.  Bill  of  Complaint — Vendor  Against  Vendee. 

(Address.) 
(Introduction.) 

I.  That  the  plaintiff,  A.  B.,  is  the  owner  in  fee  simple  in  his 
own  right  of  the  following  described  real  estate,  to-wit :    (Here 

described  premises)  did  on  the day  of.... 

enter  into  an  agreement  in  writing  with  one  C.  D.,  whereby 
the  said  C.  D.  agreed  to  purchase  said  real  estate  and  wherein 
the  plaintiff  agreed  to  sell  and  said  C.  D.  agreed  to  buy  such 
real  estate  according  to  the  terms  and  conditions  of  such  agree- 
ment, a  true  copy  of  which  is  hereto  attached  marked  "Exhibit 
A"  and  made  a  part  hereof. 

II.  That  said  C.  D.  paid  to  plaintiff  the  sum  of 

dollars,  part  of  said  purchase  money  at  the  time  of  the  execu- 
tion of  said  agreement  and  plaintiff  delivered  an  abstract  of 
his  title  to  the  said  premises  to  the  said  C.  D.  and  has  always 
been  ready  and  willing  to  perform  his  part  of  said  agreement 
and  has  repeatedly  communicated  such  fact  to  the  said  C.  D. 
and  on  being  paid  the  remainder  of  his  said  purchase  money 
with  interest,  to  convey  said  premises  to  the  said  C.  D.,  his 
heirs  and  to  let  him  into  possession  of  said  real  estate. 

III.  That  notwithstanding  that  plaintiff  has  always  been 
ready  and  willing  to  perform  said  agreement  and  has  furnished 
the  said  C.  D.  with  an  abstract  of  title  showing  a  marketable 
title  in  plaintiff,  the  said  defendant  has  wholly  failed,  neglected 
and  refused  to  carry  out  his  part  of  agreement. 

IV.  That  plaintiff  hereby  offers  to  specifically  perform  said 
agreement  on  his  part  on  being  paid  the  said  purchase  money 
and  interest  and  to  execute  a  proper  conveyance  of  said  de- 


272  THE  LAW  0F  LAND  CONTRACTS  [§  127 

scribed  premises  to  the  said  C.  D.  and  to  let  him  into  posses- 
sion of  the  same  according  to  the  tender  and  effect  of  said 
agreement. 

V.  That  the  value  of  the  subject  matter  of  this  litigation  is 
in  excess  of  $100.00  and  that  this  plaintiff  is  without  remedy 
in  the  premises  except  in  a  court  of  equity. 

WHEREFORE  plaintiff  prays: 

1.  That  the  said  C.  D.,  defendant,  may  be  compelled  by  a 
decree  of  this  Honorable  Court  specifically  to  perform  said 
agreement  with  plaintiff  and  to  pay  the  plaintiff  the  remainder 
of  said  purchase  money  with  interest  on  the  same  from  the  time 
said  purchase  money  ought  to  have  been  paid. 

2.  That  plaintiff  shall  have  such  other  and  further  relief 
as  equity  may  require. 


§  128.  Status  of  Unfulfilled  Land  Contracts  in  Case  of  Death 
of  One  of  the  Contracting  Parties. — When  a  person  who  has 
entered  into  a  contract  to  sell  real  estate  and  thereafter  dies 
or  whenever  a  person  who  has  entered  into  such  a  contract 
shall  be  adjudged  insane,  incompetent  or  a  spendthrift,  before 
deeds  or  conveyances  have  been  executed,  the  guardian  of 
such  person  or  the  trustee  or  executor  under  the  will,  or  the 
administrator  of  the  estate,  as  the  case  may  be,  is  authorized 
and  empowered  to  execute,  duly  acknowledge  and  deliver  deeds 
or  conveyance  of  the  contracted  premises,  pursuant  to  the 
terms  of  such  contract  with  like  effect  as  if  the  party  contract- 
ing to  convey  had  himself  executed  and  delivered  such  deeds 
or  conveyance. 

In  case  a  deed  is  made  under  the  authority  of  this  statute, 
it  should  contain  a  reference  to  the  date  and  respective  parties 
to  the  contract  in  pursuance  of  which  it  purports  to  have  been 
made,  and  a  copy  of  the  original  contract  under  which  the 
grantee  named  in  such  deed  or  conveyance,  makes  this  claim 
and  if  any  assignment  of  the  contract  has  been  made,  under 
which  such  grantee  claims,  such  assignment  shall  be  annexed 
to  it  and  embodied  in  every  such  deed  or  conveyance  and  shall 
be  deemed  part  and  parcel  thereof  and  as  such  shall  be  recorded 
therewith.     If  the  purchaser  of  the  premises  or  his  assignee 


§129] 


SPECIFIC  PERFORMANCE  273 


shall  have  become  deceased,  the  deed  or  conveyance  for  the 
contracted  premises  may  be  issued  in  the  name  of  such  de- 
ceased person  and  a  copy  of  the  contract  may  be  executed 
and  issued  to  and  in  the  name  of  such  deceased  person  and 
when  so  executed  and  issued  shall  have  the  same  effect  as 
though  it  had  been  executed  and  delivered  during  the  lifetime 
of  such  person  or  his  assigns.36 

§  129.  Specific  Performance  in  the  Probate  Court. — A  recent 
statute  of  this  state  provides  that  in  case  of  the  death  of  the 
vendor  of  a  land  contract,  his  administrator,  executor  or  trus- 
tee under  the  will,  shall  have  full  authority  to  convey  such  land 
contract,  pursuant  to  the  terms  of  such  contract,  with  like 
effect  as  if  the  party  contracting  to  convey  had  himself  exe- 
cuted and  delivered  such  deed  or  conveyance.  In  such  cases 
it  is,  therefore,  unnecessary  to  apply  to  the  Probate  court  to 
secure  specific  performance  of  the  contract.37  Nevertheless, 
the  statutory  provisions  authorizing  the  Probate  court  in  cer- 
tain cases  to  award  specific  performance  of  a  land  contract  have 
not  been  repealed  and  in  event  the  administrator,  executor  or 
trustee  under  the  will  of  the  deceased  person  refuses  to  con- 
vey, pursuant  to  the  terms  of  the  original  contract,  for  the 
sale  of  lands  left  by  the  decedent,  resort  may  be  had  to  the 
Probate  court  for  the  purpose  of  specifically  enforcing  such 
contract.38 

This  is  an  additional  remedy  given  to  the  vendee  or  his 
assigns,  but  does  not  in  any  way  exclude  the  jurisdiction  of 
the  court  of  equity  to  decree  such  relief.39 

§  130.  The  Petition. — On  the  presentation  of  a  petition  by 
any  person  claiming  to  be  entitled  to  such  conveyance  from  an 
executor  or  administrator  or  a  petition  of  such  executor  or 
administrator,  setting  forth  the  facts  upon  which  such  claim 
is  predicated,  the  judge  of  probate  shall  make  an  order  ap- 
pointing the  time  and  place  for  hearing  of  such  petition,  which 
order  shall  be  served  by  publishing  once  each  week  for  three 

36.  Act  396  Public  Acts  1919.  39.  Sec.     14043,     Compiled     Laws 

37.  Act  396  P.  A.  1919.  of  1915. 

38.  Sec.  14038  to  14046,  Compiled 
Laws  of  1915. 


274  THE  LAW  OF  LAND  CONTRACTS  [§  130 

successive  weeks  before  the  time  fixed  for  such  hearing  in  such 
newspapers  in  this  state  as  the  court  may  direct,  or  cause  a 
copy  of  the  order  to  be  personally  served  upon  the  heirs-at-law 
at  least  fourteen  days  before  the  day  of  hearing.40 

§  131.  The  Hearing. — At  the  time  and  place  appointed  for 
such  hearing  or  at  such  time  as  the  same  may  be  adjourned 
to,  upon  proof  by  affidavit  of  the  due  publication  of  the  notice, 
the  court  shall  proceed  to  a  hearing  and  all  persons  interested 
in  the  estate  may  appear  before  the  Probate  court  and  defend 
against  such  petition,  and  the  court  may  examine  the  petitioner 
and  all  others  who  may  be  produced  before  him  for  that 
purpose. 

If  after  a  full  hearing  upon  such  petition  and  examination 
of  the  facts  and  circumstances  of  such  claim,  if  the  judge  of 
probate  shall  be  satisfied  that  the  grantee  in  such  contract  is 
entitled  to  a  conveyance  of  the  real  estate  described  in  such 
petition,  according  to  the  provisions  of  this  chapter,  he  shall 
thereupon  make  a  decree  authorizing  and  directing  the  executor 
or  administrator  to  make  and  execute  a  conveyance  thereof  to 
such  grantee.41 

§  132.  Provisions  for  Appeal. — The  statute  provides  that  any 
person  interested  may  appeal  from  such  decree  to  the  circuit 
court  of  such  county  as  in  other  cases,  but  if  no  appeal  shall 
be  taken  from  such  decree  within  the  time  limited  by  law  or  if 
such  decree  be  affirmed  on  appeal,  it  shall  be  the  duty  of  the 
executor  or  administrator  to  execute  the  conveyance  according 
to  the  direction  contained  in  such  decree  and  a  certified  copy 
of  the  decree  shall  be  recorded  with  the  office  of  the  register 
of  deeds  in  the  county  where  the  land  lies,  and  shall  be  evi- 
dence of  the  correctness  of  the  proceeding  and  of  the  authority 
of  the  executor  or  administrator  to  make  the  conveyance.42 

§  133.  Effect  of  Conveyance. — It  is  further  provided  that 
every  conveyance  made  in  pursuance  of  the  decree  of  probate 
court  or  the  court  of  chancery,  as  provided  in  this  chapter, 

14042     Compiled     Laws 


40. 

Sec.  14039  C.  P.  L.,  Compiled 

42.  Sec 

Laws 

:,  Sec.  13781. 

1915. 

41. 

Sec.     14041     Compiled     Laws 

1915. 

§136] 


SPECIFIC  PERFORMANCE  275 


shall  be  effectual  to  pass  the  estate  contracted  for  as  fully  as  if 
the  contracting  party  himself  was  still  living  and  executed  the 
conveyance.43 

§  134.  Effect  of  Registration  of  Decree. — The  statute  also 
provides  a  copy  of  the  decree  for  the  conveyance  made  by  the 
Probate  court,  duly  certified  and  recorded  in  the  register  of 
deeds  office  in  the  county  where  the  land  lies,  or  a  copy  of  the 
decree  of  the  court  of  chancery  for  that  purpose,  duly  certified 
by  the  clerk  of  the  court  and  recorded  as  aforesaid,  shall  give 
the  person  entitled  to  such  conveyance  the  right  to  the  posses- 
sion of  the  lands  contracted  for,  and  to  hold  same  according  to 
the  terms  of  the  intended  conveyance.44 

§  135.  Specific  Performance  by  Guardians  of  Incompetents 
and  Spendthrifts. — ''When  any  person  who  is  bound  by  contract 
in  writing  to  convey  real  estate,  shall  subsequently  become  in- 
sane, incompetent  or  a  spendthrift,  and  a  guardian  shall  have 
been  duly  appointed  for  such  person,  before  the  making  of  the 
conveyance  of  such  real  estate,  the  Probate  court  may  make 
a  decree  authorizing  and  directing  such  guardian  to  convey 
such  real  estate  to  the  person  entitled  thereto,  in  all  cases 
where  such  ward,  if  competent,  might  be  compelled  to  execute 
such  conveyance."46 

"All  the  proceedings  in  such  cases  shall  conform  as  nearly 
as  possible  to  the  statutes  authorizing  the  specific  performance 
by  executors  and  administrators  of  the  contracts  of  deceased 
persons  for  the  conveyance  of  real  estate  as  contained  in  this 
chapter."46 

§  136.  Specific    Performance    by    Guardians    of    Minors.  — 

Whenever  in  the  distribution  or  partition  of  the  estate  of  any 
person,  whether  such  person  died  testate  or  intestate,  any 
moneys  due  or  to  become  due  upon  a  contract  in  writing  for  the 
sale  of  real  estate  made  by  such  deceased  in  his  lifetime,  or 
any  such  contract  or  lands  therein  described  shall  be  assigned 
or  set  off  to  any  minor,  the  probate  court  having  jurisdiction 

43.  Sec.  14043  Compiled  Laws  45.  Sec.  14050  Compiled  Laws  of 
1915.  1915. 

44.  Sec.  14045  Compiled  Laws  46.  Sec.  14051  Compiled  Laws  of 
1915.                                                                  1915. 


276  THE  LAW  OF  LAND  CONTRACTS  [§  136 

of  the  estate  of  such  minor,  may  make  a  decree  authorizing 
and  directing  the  guardian  of  such  minor  to  convey  such  real 
estate  to  the  person  entitled  thereto,  in  like  cases,  and  upon 
the  presentation  of  a  like  petition,  either  by  the  person  en- 
titled to  such  conveyance,  or  by  the  guardian  of  such  minor, 
and  the  same  proceedings  shall  thereupon  be  had,  and  with 
like  effect  as  herein  provided  for  conveyance  by  executors  and 
administrators.47 

The  guardian  of  any  such  minor  may,  in  the  cases  provided 
for  in  the  last  section,  embrace  any  number  of  such  contracts 
that  may  have  been  so  assigned  and  set  off  to  such  minor*  in 
one  petition,  and  such  probate  court,  on  the  hearing  of  such 
petition,  may  decree  a  conveyance  of  the  real  estate  pursuant  to 
the  terms  of  such  contracts,  to  the  several  persons  entitled 
thereto  in  the  same  manner,  and  with  like  effect  as  hereinbe- 
fore provided.48 

§  137.  Form  of  Petition  for  Specific  Performance. 
STATE  OF  MICHIGAN 

THE  PROBATE  COURT  FOR  THE  COUNTY  OF 

To  the  Probate  Court  for  said  County : 

In  the  Matter  of  the  Estate  of 

Deceased. 

1       respectfully  represent 

that  I  reside  in  the of in  said  county,  and 

am  interested  in  said  estate  and  make  this  petition  as 

I  further  represent  that  said  deceased,  on  the day 

of ,A  D.  19 ,  entered  into  a  contract  with 

wherein agreed  to  convey,  upon  the  terms  and 

conditions  therein  mentioned,  a  copy  of  which  contract  is  here- 
to attached  marked  "Exhibit  A"  and  made  a  part  hereof,  the 
following  described  real  estate,  to-wit: 

I  further  represent  that  said  deceased  died  on  the 

day  of ,  A.  D.  19 ,  without  making  the  convey- 
ance required  by  such  contract,  and  that has  been 

duly  appointed of  said  estate 

47.  Sec.     14048     Compiled    Laws  48.  Sec.     14049     Compiled     Laws 

1915.  1915- 


§  137] 


SPECIFIC  PERFORMANCE  277 


I  further  represent  that  there  has  been  paid  upon  said  con- 
tract the  following  sums,  at  the  dates  mentioned,  to-wit: 

and  that  there  is  now  due  and  unpaid  upon  said 

contract  the  sum  of dollars,  upon  the  payment  of 

which  sum  I  will  be  entitled  to  a  conveyance  of  said  lands 
by  the  terms  of  said  contract. 

I  further  represent  that  I  am  prepared  and  willing  to  pay 
said  sum,  and  am  ready  and  hereby  offer  to  perform  all  the 
requirements  and  conditions  of  said  contract  on  my  part  to  be 
performed,  as  said  court  shall  direct 

I  further  represent  that  the  names,  relationship,  ages  and 
residences  of  the  heirs-at-law  of  said  deceased  and  other  per- 
sons interested  in  said  estate,  as  I  am  informed  and  believe, 
are  as  follows : 
Name  Relationship  Age  Residence 

I  therefore  pray  that  a  specific  performance  of  said  contract 

be  decreed,  and  that  the of  said  estate  be  authorized 

and  directed  to  make  and  execute  conveyance  of  the  real  estate 
described  in  said  contract  to  me,  upon  the  terms  and  conditions 
therein  mentioned. 


P.  0 

STATE  OF  MICHIGAN      1 
County  of J 

On  this day  of ,  A.  D.  19 ,  before  me 

personally  appeared  the  above  named  petitioner,  who  being 
duly  sworn  says  that has read  the  fore- 
going petition  by signed  and  knows  the  contents 

thereof,  and  that  the  same  is  true  of own  knowledge, 

except  as  to  the  matters  therein  stated  to  be  upon 

information  and  belief,  and  as  to  those  matters be- 
lieves it  to  be  true. 


Notary  Public County,  Mich. 

My  commission  expires 19 


278  THE  LA"W  OF  LAND  CONTRACTS  [§  138 

§  138.  Form  of  Order  for  Publication. 

STATE  OF  MICHIGAN 
THE  PROBATE  COURT  FOR  THE  COUNTY  OF 

At  a  session  of  said  court,  held  at  the  probate  office  in  the 

of in  said  county,  on  the day 

of ,  A.  D.  19 

Present,  Hon Judge  of  Probate. 

In  the  Matter  of  the  Estate  of 

Deceased. 

having  filed  in  said  court 

petition  praying  that  the of  said  estate  be  author- 
ized and  directed  to  convey  certain  real  estate  in  pursuance 
of  a  certain  contract  made  by  said  deceased  in lifetime. 

It  is  Ordered,  That  the day  of ,  A.  D. 

19 ,  at  ten  o'clock  in  the  forenoon,  at  said  probate  office,  be 

and  is  hereby  appointed  for  hearing  said  petition; 

It  is  Further  Ordered,  That  public  notice  thereof  be  given 
by  publication  of  a  copy  of  this  order,  for  three  successive 

weeks  previous  to  said  day  of  hearing,  in  the a 

newspaper  printed  and  circulated  in  said  county. 

A  true  copy.  

Judge  of  Probate. 

Register  of  Probate. 

§  139.  Form  of  Proof  of  Service. 

STATE  OF  MICHIGAN 
THE  PROBATE  COURT  FOR  THE  COUNTY  OF 

In  the  Matter  of  the  Estate  of 

County  of ss. 

being  duly  sworn,  says:    I  served  upon 

a  copy  of  the  order,  of  which  the  foregoing  is  a 

true  copy,  on  the day  of ,  A.  D.  19 ,  at 

the of in  said  county,  by  delivering  the 

same  to personally 

Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19 


Notary  Public, County,  Michigan. 

My  commission  expires 19 


§  141]  SPECIFIC  PERFORMANCE  279 

§  140.  Form  of  Proof  of  Publication. 

STATE  OF  MICHIGAN 

THE  PROBATE  COURT  FOR  THE  COUNTY  OF 

County  of ss. 

being   duly    sworn,    says* 

I  am  the printer  of a  news- 
paper printed  and  circulated  in  said  county.  The  annexed  is  a 
printed  copy  of  a  notice  which  was  published  in  said  paper 
on  the  following  dates,  to-wit: 

A.  D.  19 A.  D.  19 

A.  D.  19 A.  D.  19 

A.  D.  19 A.  D.  19 


Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19 


Notary  Public County,  Mich. 

My  commission  expires 19 

§  141.  Form   of  Order   for   Specific   Performance   of   Land 
Contract. 

STATE  OF  MICHIGAN 
THE  PROBATE  COURT  FOR  THE  COUNTY  OF 

At  a  session  of  said  court,  held  at  the  probate  office  in  the 

of in  said  county,  on  the day 

of ,  A.  D.  19 

Present,  Hon Judge  of  Probate. 

In  the  Matter  of  the  Estate  of 

Deceased. 

having  been  appointed  for  hearing  the 

petition  of praying  that  the of  said 

estate  be  authorized  and  directed  to  convey  certain  real  estate 
in  said  petition  described  to  said  petitioner,  in  pursuance  of  a 
certain  contract  made  by  said  deceased,  and  due  notice  of  the 
hearing  on  said  petition  having  been  given  as  directed  by  said 
court,  the  said  petitioner  appeared 

It  appearing  to  the  court,  that has 

been  duly  appointed of  said 

estate 


2g0  THE  LAW  OF  LAND  CONTRACTS  [§  141 

And  it  further  appearing,  after  a  full  hearing  upon  said 
petition  and  examination  of  the  facts  and  circumstances  of  the 

claim  of  said  petitioner,  and  that  deceased  did,  on  the 

day  of... ,  A.  D.  19 ,  make  and  enter  into  a  certain 

contract  with said  petitioner  for  the  conveyance  of 

the  following  described  real  estate,  to-wit: and  that 

said  petitioner  is  now  entitled  to  a  conveyance  thereof  upon 

paying  the  sum  of dollars,  balance  of  the  purchase 

price  of  said  real  estate 

It  is  Ordered,  That  upon  the  petitioner  paying  said  sum  of 

money  as  aforesaid  the of  said  estate  be  and 

hereby  authorized,  empowered  and  directed  to  make,  execute, 
acknowledge  and  deliver  a  sufficient  conveyance  in  law,  in  fee 

simple,  of  said  real  estate,  to  said  petitioner , 

heirs  and  assigns,  forever,  and  of  all  the 

estate,  right,  title  and  interest,  which  the  said  deceased  had 

therein  at  the  time  of ..death,  together  with  the 

appurtenances  thereunto  belonging,  in  pursuance  of  the  statute 
in  such  case  made  and  provided. 


Judge  of  Probate. 

§  142.  Deed  Where  Executor  or  Administrator  Conveys  Pur- 
suant to  Land  Contract  Under  P.  A.  396,  1919. 

This  Indenture,  Made  this day  of ,  A. 

D.  19.......  by  and  between administrator  of 

the  estate  of.  ,  hereinafter  referred  to  as 

party  of  the  second  part. 

Witnesseth,  That  Whereas,  the  said 

(Here  name  decedent),  on  the day  of ,  A. 

D.  19 ,  contracted  in  writing  to  sell  arid  convey  to  party  of 

the  second  part  for  the  sum  of Dollars,  the  real  estate 

hereinafter  described,  said  contract  being  in  words  and  figures, 
as  follows,  to-wit:  (Here  copy  in  verbatim  the  complete 
contract.) 

And  Whereas,  there  is  at  this  date  unpaid  on  said  contract 
the  sum  of Dollars. 

And  Whereas,  the  party  of  the  first  part  has  been  duly  ap- 
pointed by  the  Probate  Court  for  the  County  of , 


§  142]  SPECIFIC  PERFORMANCE  281 

State  of  Michigan,  administrator  (or  executor,  as  the  case  may 

be),  of  the  estate  of  said , 

and  has  duly  qualified  as  such. 

Now,  therefore,  the  said  party  of  the  first  part,  in  considera- 
tion of  the  payment  of  the  balance  of  said  purchase  price  upon 
said  contract,  to  him  in  hand  paid  by  said  party  of  the  second 

part,  to-wit:   the  sum  of Dollars,  receipt  whereof 

is  hereby  confessed,  does  by  these  presents  sell  and  convey 
to  the  said  party  of  the  second  part  and  to  his  heirs  and 

assigns  forever  all  the  right,  title  and  interest  of  the  said 

(here  name  decedent),  in  and  to  the 

said  real  estate,  to-wit:  (Here  describe  real  estate),  together 
with  all  and  singular  the  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  any  wise  appertaining; 

TO  HAVE  AND  TO  HOLD  the  said  premises  as  above  de- 
scribed, with  the  appurtenances  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  forever. 

In  Witness  Whereof,  said  party  of  the  first  part  has  here- 
unto set  his  hand  and  seal  the  day  and  year  first  above  written. 


of  the  estate  of 

Signed,  Sealed  and  Delivered  in  Presence  of 


ss. 


STATE  OF  MICHIGAN, 
County  of 

On  this day  of ..in  the  year  one  thousand 

nine  hundred  and ,  before  me.... in 

and  for  said  County,  personally  appeared of  the 

estate  of to  me  known  to  be  the 

same  person  described  in,  and  who  executed  the  within  instru- 
ment, who  acknowledged  the  same  to  be free  act 

and  deed. 


2g2  THE  LAW  OF  LAND  CONTRACTS  [§  143 

§  143.    Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
Involving  Specific  Performance. — Continued. 

BIRNEY  v.  READY,  216  Mich.,  page  7— 

(a)  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  and  Cross-Bill. 

(d)  Brief  for  Plaintiff. 

(e)  Brief  for  Defendant. 

(f)  Holding  of  the  Court. 

LYLE  v.  MUNSON,  213  Mich.  250— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  of  Defendant. 

(d)  Exhibit  "A". 

(e)  Intervenors'  Bill  of  Complaint. 

(f)  Answer  to  Intervenors'  Bill  of  Complaint. 

(g)  Opinion  of  the  Court, 
(h)  Decree  of  the  Court. 

(i)  Authorities  Cited  by  Plaintiff— Brief  for  Plaintiff, 
(j)  Authorities  Cited  by  Defendant— Brief  for  Defendant. 
BIRNEY  v.  READY,  216  Mich.,  page  7— 

(a)  Statement  of  Fact.— The  plaintiff  in  this  case  filed  a  Bill  of  Com- 
plaint praying  for  specific  performance  of  a  certain  contract.  Defendants 
filed  an  answer  and  cross-bill  setting  forth  that  they  had  purchased  the 
property  from  the  feeholder  and  also  from  the  plaintiff  and  prayed  to  be 
decreed  sole  owners.  A  decree  was  granted  in  the  lower  court  to  the 
defendant.     The  plaintiffs   appealed.     This   appeal  was  affirmed   by  the 

Supreme  Court. 

(b)  Bill  of  Complaint.— (Caption.)— Comes  now,  Francis  J.  Birney  and 
Timothy  A.  Birney  and  respectfully  represent  unto  the  court: 

I.  That  they  are  each  of  the  age  of  twenty-one  years  and  upwards, 
citizens  of  the  United  States  of  America  and  residents  of  the  County  of 
Berrien,  State  of  Michigan. 

II.  That  heretofore,  to-wit,  on  the  23rd  day  of  November,  1914,  these 
plaintiffs  and  F.  S.  Claflin  and  Ella  M.  Claflin,  husband  and  wife,  made 
and  entered  into  a  certain  agreement  and  contract  in  writing  for  the 
sale  by  the  said  F.  S.  Claflin  and  Ella  M.  Claflin  to  these  plaintiffs  of  that 
certain  piece  or  parcel  of  land  situate  in  the  City  of  Niles,  County  of 
Berrien  and  State  of  Michigan,  and  described  as  follows,  to-wit: 

Lot  twenty-five  of  E.  Lacey's  Addition  to  the  City  of  Niles  and  lot  twen- 
ty-four, except  the  East  two  feet  thereof  of  E.  Lacey's  Addition  to  the 
City  of  Niles,  according  to  the  recorded  plat  thereof,  with  the  privileges 
and  appurtenances  thereunto  belonging;  also,  the  following  personal 
property:  All  the  furniture,  carpets,  pictures  and  frames,  plated  ware 
and  utensils  of  every  name  and  nature  and  all  personal  property  then 
situate  in  said  hotel,  except  certain  personal  property  reserved  by  J.  S. 
Johnson  and  Sallie  Johnson. 


§  143]  SPECIFIC  PERFORMANCE  283 

III.    That  said  contract  is  in  words  and  figures  as  follows: 
Exhibit  I. — "Articles  of  Agreement,  made  and  concluded  this  23rd  day 
of  November,  in  the  year  1914,  between  F.  S.  Claflin  and  Ella  M.  Claflin, 
husband  and  wife,  parties  of  the  first  part,  and  Francis  J.  Birney  and 
Timothy  A.  Birney,  parties  of  the  second  part, 

Witnesseth,  that  the  said  parties  of  the  first  part  for  their  heirs, 
executors,  administrators,  in  consideration  of  the  money  to  be  paid  and 
the  covenants  as  herein  expressed  to  be  performed  by  the  said  parties 
of  the  second  part,  hereby  agree  to  sell  and  convey  to  the  said  second 
parties  all  the  following  described  land  situated  in  the  City  of  Niles, 
County  of  Berrien  and  State  of  Michigan,  and  described  as  follows, 
to-wit: 

Lot  twenty-five  (25)  of  E.  Lacey's  Addition  to  the  City  of  Niles  and 
lot  twenty-four  (24),  except  the  east  two  (2)  feet  of  Lacey's  Addition  to 
the  City  of  Niles,  according  to  the  recorded  plat  thereof,  with  the  privi- 
leges and  appurtenances  thereunto  belonging; 

And  the  said  parties  of  the  first  part  in  consideration  of  the  money  to 
be  paid  and  the  covenants  to  be  performed  by  the  said  second  party 
hereby  agree  to  sell  to  the  said  second  party  all  the  furniture,  carpets, 
pictures  and  frames,  plated  ware  and  utensils  of  every  name  and  nature 
and  also  all  personal  property  now  situated  and  being  in  said  hotel  except 
the  personal  property  reserved  by  J.  S.  Johnson  and  Sallie  Johnson  in 
an  agreement  this  day  entered  into  with  said  first  parties  and  to  which 
reference  is  hereby  made,  for  a  description  of  the  goods  and  chattels 
reserved. 

And  the  said  parties  of  the  second  part  for  themselves,  their  heirs, 
executors,  administrators  and  assigns  in  consideration  of  the  premises 
hereby  agree  to  purchase  said  land  and  personal  property  and  to  pay  as 
the  purchase  money  therefor  to  the  said  parties  of  the  first  part,  their 
executors,  administrators  or  assigns,  the  sum  of  thirteen  thousand  four 
hundred  fifty-two  dollars  and  sixty-five  cents  ($13,452.65),  and  all  unpaid 
taxes  which  have  been  assessed  against  said  real  and  personal  property 
since  July  12,  1912,  and  all  insurance  premiums  which  have  been  paid 
by  said  first  parties  since  July  12,  1912,  said  payments  to  be  made  as 
follows: 

On  or  before  December  first,  1914,  said  second  parties  are  to  pay  all 
unpaid  taxes  and  the  premiums  paid  by  said  first  parties  for  insurance 
since  July  12,  1912,  and  are  also  to  pay  the  costs  and  interest  on  the 
costs  of  foreclosing  a  mortgage  given  by  George  Benson  and  wife  to  said 
first  parties  on  July  12,  1912.  The  payment  of  the  above  taxes,  insurance 
premiums  and  foreclosure  costs  to  be  the  first  payment  on  this  contract. 

The  second  payment  is  to  be  made  on  or  before  November  23,  1915, 
and  is  to  be  in  the  sum  of  five  hundred  dollars   ($500). 

And  said  second  parties  further  agree  to  pay  the  sum  of  five  hundred 
dollars  ($500)  on  the  23rd  day  of  November  of  each  and  every  succeed- 
ing year  until  the  full  purchase  price  is  paid. 


284  THE  LAW  OF  LAND  CONTRACTS  [§  143 

And  said  second  parties  also  agree  to  pay  interest  at  the  rate  of  six 
per  cent  per  annum  to  be  paid  each  and  every  month  on  the  whole  sum 
from  time  to  time  remaining  unpaid. 

And  said  parties  of  the  second  part  have  the  privilege  of  paying  one 
hundred  dollars  ($100)  or  more  on  this  contract  at  any  time. 

And  also  that  said  second  parties  will  well  and  faithfully  in  due  season 
pay  or  cause  to  be  paid  all  taxes  and  assessments  ordinary  and  extraor- 
dinary for  any  purpose  whatever  that  shall  be  taxed  or  assessed  upon 
said  lands  and  appurtenances  and  said  personal  property  including  the 
taxes  for  the  year  1914. 

Said  second  parties  also  agree  to  pay  all  bills  for  gas  and  electricity 
used  in  said  hotel. 

And  also  that  said  second  parties  shall  and  will  keep  the  buildings 
erected  and  to  be  erected  upon  the  lands  above  described  and  the  per- 
sonal property  in  the  buildings  on  said  lands  and  the  personal  property 
which  may  in  the  future  be  placed  in  said  buildings  insured  against  loss 
or  damage  by  fire  in  an  amount  and  by  insurers  approved  by  the  parties 
of  the  first  part  and  assign  the  policy  and  certificates  thereof  to  the  said 
parties  of  the  first  part. 

It  is  mutually  agreed  by  and  between  the  parties  hereto  that  said 
parties  of  the  second  part  shall  have  possession  of  said  lands,  hotel  and 
personal  property  under  this  contract  on  the  23rd  day  of  November, 
1914,  and  that  said  parties  of  the  second  part  during  the  existence  of  this 
contract  shall  not  remove  from  said  lands  any  buildings,  improvements 
or  fixtures  and  shall  not  remove  from  said  buildings  any  of  the  furniture, 
carpets,  pictures,  plated  ware,  beds,  mattresses,  toweling,  linens  or  any 
personal  property  which  may  be  in  said  hotel  or  may  be  put  in  said 
hotel. 

It  Is  mutually  agreed  that  said  parties  of  the  second  part  shall  not  sell, 
assign  or  transfer  this  contract  nor  their  right,  title  and  interest  in  and 
to  the  same  to  any  other  person  or  persons,  firm  or  corporation  without 
the  written  consent  thereto  of  the  said  parties  of  the  first  part  having 
been  first  obtained  and  endorsed  thereby. 

The  said  parties  of  the  first  part  hereby  covenant  and  agree  to  and 
with  said  parties  of  the  second  part  that  upon  the  faithful  performance 
by  the  said  parties  of  the  second  part  of  the  covenants  as  herein 
expressed  on  their  part  to  be  kept  and  performed,  and  upon  the  pay- 
ment by  said  parties  of  the  second  part  of  the  principal  and  interest 
at  the  time  and  in  the  manner  hereinbefore  specified  the  said  parties 
of  the  first  part  shall  and  will,  without  delay,  well  and  faithfully  execute 
and  deliver  in  person  or  by  attorney  duly  authorized  to  said  parties  of 
the  second  part  a  good  and  sufficient  warranty  deed  and  thereby  sell 
and  convey  to  said  parties  said  lands  as  above  described  free  and  clear 
of  and  from  all  liens  and  encumbrances  except  such  as  may  have 
accrued  on  said  lands  subsequent  to  the  date  hereof  by  or  through  the 
care  or  negligence  of  the  said  parties  of  the  second  part.  And  it  is 
further  agreed  by  the  parties  hereto  that  said  parties  of  the  first  part 


S  143 1  SPECIFIC  PERFORMANCE  285 

on  receiving  payment  in  full  of  the  said  principal  and  interest  and  of 
all  other  sums  chargeable  in  their  favor  hereon  shall  and  will  execute 
and  deliver  to  the  said  parties  of  the  second  part  a  Bill  of  Sale  of  the 
personal  property  now  in  said  hotel,  except  that  which  has  been  reserved 
by  J.  S.  and  Sally  Johnson  as  hereinbefore  mentioned,  and  that  the 
same  shall  be  free  and  clear  from  all  liens  and  encumbrances  except 
such  as  may  have  accrued  thereon  subsequent  to  the  date  hereof  by 
or  through  the  acts  or  negligence  of  said   parties. 

And  it  is  further  mutually  covenanted  and  agreed  by  and  between 
the  parties  hereto  that  if  default  shall  be  made  by  the  said  parties  of 
the  second  part  in  any  of  the  payments  of  the  principal  or  interest  at 
the  times  or  any  of  the  times  hereinbefore  specified  for  the  payment 
thereof  and  for  ten  (10)  days  thereafter  or  in  case  said  parties  of  the 
second  part  shall  fail  to  keep  and  perform  this  contract  in  any  other 
respect  wherein  the  same  is  herein  required  by  and  on  their  part  to 
be  kept  and  performed,  in  any  such  case  said  party  of  the  first  part 
shall  immediately  thereafter  have  the  right  to  declare  this  contract 
void  and  no  longer  binding  and  all  payments  which  shall  then  have 
been  made  hereon  or  in  pursuance  hereof  to  be  absolutely  and  forever 
forfeited  to  said  parties  of  the  first  part  in  the  said  land  with  the 
buildings  and  improvements  thereon  and  the  personal  property  now 
in  said  hotel  or  which  may  be  put  in  said  hotel  shall  revert  to  said 
parties  of  the  first  part  and  said  parties  of  the  first  part  may  consider 
and  treat  said  parties  of  the  second  part  as  their  tenants,  holding  over 
without  permission  and  may  take  immediate  possession  of  the  said 
premises  and  remove  the  said  parties  of  the  second  part  therefrom,  or 
at  the  election  of  said  parties  of  the  first  part  the  covenants  herein 
contained  on  the  part  of  the  said  parties  of  the  second  part  to  be  kept 
and  performed  and  the  liability  of  said  parties  of  the  second  part  under 
this  contract  shall  continue  and  remain  obligatory  upon  the  said  par- 
ties of  the  second  part  and  may  be  enforced  and  the  said  consideration 
money  and  every  part  thereof,  with  interest  and  any  unpaid  taxes 
and  insurance  premiums  as  hereinbefore  specified  may  be  collected  by 
proper  proceedings  in  law  or  equity  from  said  parties  of  the  second 
part  and  conveyance  of  said  premises  be  made  as  aforesaid. 

And  it  is  agreed  that  the  stipulations  herein  cantained  are  to  apply 
to  and  bind  the  heirs,  executors,  administrators  and  assigns  of  the 
respective   parties  hereto. 

In  witness  whereof  the  parties  hereto  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written  and  have  executed  this 
contract  in  duplicate. 

(Signatures.) 

(Verification.) 

IV.  Plaintiffs  further  show  unto  the  court  that  they  have  in  all 
respects  carried  out  their  part  of  the  contract  and  have  done  and  per- 


286  THE  LAW  OF  LAND  CONTRACTS  [§  143 

formed   all  matters  and   things  therein   contained   by  them   to  be   done 
and  performed  and  have  made  payments  as  follows,  to-wit: 

May  10th,  1915,  $500;  March  23rd,  1916,  $500;  June  11th,  1917,  $500, 
which  consisted  of  two  items,  insurance  $54.54  and  check  for  $445.46; 
January  27th,  1918,   $500. 

V.  That  on  the  10th  day  of  May,  A.  D.  1919,  F.  S.  Claflin  and  Ella  M. 
Claflin  conveyed  the  above  described  land  with  the  appurtenances  to 
T.  Williard  Ready  of  Niles,  Michigan,  subject  however,  to  the  rights 
of  these  plaintiffs  in  the  premises. 

VI.  That  on  the  28th  day  of  November,  A.  D.  1919,  these  plaintiffs 
offered  to  pay  the  said  Ready  the  amount  of  payments  then  due,  to-wit: 
five  hundred  dollars,  and  tendered  the  same  to  him;  that  he  refused 
to  take  the  same,  asserting  that  he  was  the  owner  of  said  property  and 
these  plaintiffs  had  no  rights  therein. 

VII.  That  in  addition  to  making  the  payments  aforesaid  these  plain- 
tiffs paid  the  interest  monthly  while  the  Claflins  were  the  owners  of 
said  lands  and  thereafter  paid  the  interest  monthly  to  the  said  Ready. 

VIII.  That  on  January  26,  1920,  these  plaintiffs  tendered  to  the  said 
Ready  the  amount  then  due  on  a  contract,  to-wit,  the  sum  of  eleven 
thousand  five  hundred  twelve  dollars  and  seventy-two  cents  ($11,512.72), 
that  therefore  these  plaintiffs  tendered  the  said  Ready  Twelve  thousand 
dollars  and  twelve  dollars  and  seventy-two  cents  ($12,012.72),  being  the 
said  sum  of  five  hundred  dollars  tendered  in  November,  1919,  and  the 
amount  tendered  January  26,  1920.  That  the  same  was  tendered  In 
lawful  money  of  the  United  States  of  America,  to  him,  the  said  Ready, 
and  he  was  then  and  there  requested  to  receive  the  same  and  receipt 
therefor. 

IX.  That  on  the  same  day  this  plaintiff  presented  to  the  said  Ready 
a  draft  of  a  deed  of  conveyance  of  said  land  in  fee  simple  to  this 
plaintiff  and  a  bill  of  sale  of  the  personal  property  and  then  and  there 
requested  the  said  Ready  to  execute  the  same  and  to  deliver  the  same 
when  executed  to  these  plaintiffs,  but  so  to  do  the  said  Ready  then  and 
there  absolutely  refused,  although  he  was  then  and  there  well  able  to 
convey  said  personal  property,  and  said  lands  to  these  plaintiffs,  and  al- 
though the  amount  tendered  and  offered  by  these  plaintiffs  to  him  was 
ample  and  sufficient  to  pay  and  satisfy  the  full  amount  due  and  owing  on 
said  contract,  that  the  said  Ready  absolutely  refused  to  comply  with  plain- 
tiffs' request  and  refused  to  receive  or  accept  the  said  money  so  ten- 
dered and  offered  to  him  as  aforesaid,  although  making  no  claim  that 
the  same  was  insufficient  in  amount  and  absolutely  then  and  there 
refused  to  make  conveyance  or  any  conveyance  whatsoever  and  since 
said  time  the  said  Ready  has  refused  and  still  refuses  to  accept  said 
money  and  make  the  conveyance  as  aforesaid  as  in  equity  and  good 
conscience  he  should. 

X.  Plaintiffs  further  show  that  in  equity  they  are  entitled  to  have 
said  conveyance  made  upon  payment  to  the  owner  of  said  lands  of  the 
amount   due   on   said   contract.     That   the   said    Ready   as   they   verily 


s  143 1  SPECIFIC  PERFORMANCE  287 

believe  purchased  said  land  from  the  said  Claflin  with  the  intent  and 
purpose  of  depriving  these  plaintiffs  of  their  rights  in  said  contract 
because  of  the  fact  that  property  in  the  City  of  Niles  was  rapidly 
advancing  in  value  and  they  say  that  this  property  to-day  Is  worth 
$25,000. 

XI.  Plaintiffs  further  show  as  heretofore  set  forth  that  they  tendered 
the  full  sum  due  on  said  contract  and  they  here  again  offer  the  same 
to  the  defendant  and  now  here  advise  the  court  that  they  are  ready 
and  willing  to  pay  the  same  to  the  said  defendant  and  that  they  have 
now  and  will  hereafter  keep  the  same  in  readiness  to  pay  the  same  to 
said  defendant  or  to  such  other  person  or  persons  as  the  court  6hall 
direct,  either  now  or  at  any  other  time  up  to  and  including  the  dis- 
position thereof  by  this  court. 

XII.  Wherefore,  plaintiffs  pray: 

(1)  That  the  defendant,  T.  Williard  Ready,  may  without  oath,  his 
answer  under  oath  being  hereby  expressly  waived,  answer  the  allega- 
tions of  this  Bill  of  Complaint. 

(2)  That  the  said  defendant,  T.  Williard  Ready  and  Grace  M.  Ready, 
his  wife,  who  is  made  a  party  defendant  to  this  bill  of  complaint  solely 
and  only  because  of  the  fact  that  she  is  his  wife,  may  be  decreed  to 
specifically  perform  said  contract  and  to  convey  to  those  plaintiffs  by 
a  good  and  sufficient  deed  title  to  said  land  and  by  a  good  and  sufficient 
bill  of  sale,  title  to  the  personal  property. 

(3)  That  the  said  defendant,  T.  Williard  Ready,  may  come  to  an 
account  with  the  plaintiffs  touching  the  amount  due  and  owing  on  said 
contract.  These  plaintiffs,  as  before  indicated,  being  ready  and  willing 
and  hereby  offer  to  pay  the  whole  amount  due  on  said  contract. 

(4)  That  upon  such  payment  the  said  T.  Williard  Ready  be  ordered, 
directed  and  decreed  by  this  court  to  make  the  conveyance  aforesaid. 

(5)  That  upon  the  making  of  the  payment  aforesaid  that  the  plaintiffs 
be  decreed  to  be  the  owners  of  the  land  described  in  said  contract  and 
the  whole  thereof  in  fee  simple  and  of  the  personal  property  and  of  the 
whole  thereof  and  that  the  said  T.  Williard  Ready  be  decreed  to  be 
divested  of  all  right,  title  and  interest  therein,  and  that  the  plaintiffs 
have  leave  to  cause  such  decree  to  be  recorded  in  the  office  of  the 
Register  of  Deeds  aforesaid. 

(6)  And  that  the  plaintiffs  may  have  such  other  and  such  further 
relief  in  the  premises  as  shall  be  agreeable  to  equity  and  good  con- 
science. 

(7)  And  plaintiffs  will  ever  pray. 

Edwin  J.   Donahue,  attorney  for  Francis  J.  Birney, 

plaintiffs,   Niles,    Michigan.  Timothy  A.  Birney. 

Thos.   J.    Cavanaugh,   Paw    Paw,    Mich., 

Of  Counsel. 
(Verification.) 


2g8  THE  LAW  OF  LAND  CONTRACTS  [§  143 

(c)  Answer  and  Cross-Bill. —  (Caption.) 

Come  now  the  above  named  defendants  and  for  answer  to  plaintiffs' 
Bill  of  Complaint  say: 

I.  The  defendants  admit  the  first  paragraph  of  plaintiffs'  bill  of  com- 
plaint. 

II.  The  defendants  admit  the  second  paragraph  of  plaintiffs'  bill  of 
complaint. 

III.  The  defendants  admit  the  tbird  paragraph  of  plaintiffs'  bill  of 
complaint. 

IV.  The  defendants  deny  the  fourth  paragraph  of  plaintiffs'  bill  of 
complaint  and  in  answer  thereto  say  that  the  payments  of  May  10, 
1915,  and  March  23,  1916,  amounting  to  One  Thousand  dollars,  were  made 
by  the  plaintiffs  but  that  payments,  commencing  June  11,  1917,  and  up 
to  the  present  time,  paid  on  said  contract,  were  made,  if  made  at  all, 
by  the  plaintiffs  acting  for  and  in  behalf  of  the  defendants  and  that 
the  defendants,  T.  Williard  Ready  and  Grace  Ready,  advanced  the 
money  to  make  said  payments  by  reason  of  their  ownership  of  all  of 
the  plaintiffs'  interest  in  the  contract  set  forth  in  the  third  paragraph 
of  plaintiffs'  bill  of  complaint,  and  that  the  payments  of  $500  and  $54.54 
and  $445.46  made  on  June  11,  1917,  and  the  payment  of  $500  on  Jan.  27, 
1918,  were  in  fact  the  payments  of  the  defendants. 

V.  The  defendants  admit  that  on  the  10th  day  of  May,  1919,  that  F.  S. 
Claflin  and  Ella  M.  Claflin  conveyed  all  their  right,  title  and  interest 
in  and  to  said  property  described  in  the  second  paragraph  of  plaintiffs' 
bill  of  complaint,  T.  Williard  Ready,  subject  to  the  right  of  the  plain- 
tiffs, if  any,  and  in  further  answer  thereto  the  defendants  say  that 
upon  delivery  of  the  said  deed  from  the  said  F.  S.  Claflin  and  Ella  M. 
Claflin  to  the  said  T.  Williard  Ready  that  thereupon  the  said  T.  Wil- 
liard Ready  became  the  absolute  owner  of  all  the  property  described 
in  said  second  paragraph  of  plaintiffs*  bill  of  complaint.  That  prior 
to  the  10th  day  of  May,  1919,  and  on  or  about  the  11th  day  of  June, 
1917,  the  plaintiffs  for  a  good  and  valuable  consideration  then  paid  and 
delivered  to  them  by  the  defendant,  sold,  transferred,  conveyed  and 
assigned  to  the  defendant,  T.  Williard  Ready,  all  their  right,  title  and 
interest  of  the  plaintiffs,  Francis  J.  Birney,  and  Timothy  A.  Birney,  in 
and  to  the  land  contract,  a  copy  of  which  is  set  forth  in  the  third 
paragraph  of  plaintiffs'  bill  of  complaint. 

VI.  The  defendants  answering  the  sixth  paragraph  of  plaintiffs'  bill 
of  complaint,  admit  that  on  the  28th  day  of  November,  1919,  the  said 
plaintiffs  offered  to  pay  the  said  Ready  $500  and  the  defendant,  T.  Wil- 
liard Ready,  admits  that  he  refused  to  accept  the  same  and  he  did 
then  and  there  assert  that  he  was  the  owner  of  the  property  and  that 
the  plaintiffs  had  no  right  therein,  all  of  which  is  true  for  the  reason 
set  forth  in  the  fifth  paragraph  of  this  answer,  to-wit:  that  the  plaintiffs 
had  prior  to  that  time  sold  and  assigned  all  of  their  interest  in  said 
premises  described  in  plaintiffs'  bill  of  complaint  and  in  said  land 
contract  to  the  defendant,  T.  Williard  Ready. 


s  1431  SPECIFIC  PERFORMANCE  289 

VII.  The  defendant,  T.  Williard  Ready,  answering  the  seventh  par- 
agraph of  plaintiffs'  bill  of  complaint,  denies  that  the  plaintiff  had  paid 
any  interest  to  the  said  T.  Williard  Ready.  He  admits  that  said  plain- 
tiffs have  sent  him  a  check  which  was  presumably  for  interest  but  that 
the  said  T.  Williard  Ready  has  never  accepted  any  of  said  checks  pur- 
porting to  be  for  interest  and  has  never  cashed  any  at  any  bank  and 
that  no  interest  was  due  from  the  said  plaintiffs  to  the  said  Ready  and 
that  the  said  defendant,  Ready,  has  so  notified  the  said  plaintiffs  and 
he  stands  ready  and  willing  to  deliver  to  the  said  plaintiffs  all  of  said 
checks  heretofore  mailed   to  the  said  Ready. 

VIII.  Answering  the  eighth  paragraph  of  plaintiffs'  bill  of  complaint 
the  defendant,  T.  Williard  Ready,  says  that  he  admits  that  on  the  26th 
day  of  January,  1920,  the  said  plaintiffs  tendered  to  him  the  sum  of 
$11,512.72  which,  together  with  the  $500  before  that  time  tendered 
amounted  to  $12,012.72.  The  defendant,  T.  Williard  Ready,  says  in 
answer  thereto  that  he  refused  to  accept  the  said  sum  so  tendered  for 
the  reason  that  at  the  time  of  the  said  tender  and  at  no  time  since 
said  tender  was  made  have  the  said  plaintiffs  owed  the  said  defendant 
any  sum  of  money,  except  such  a  sum  of  money  as  they  owe  for  the 
rent  and  uses  of  the  premises  described  in  said  plaintiffs'  bill  of  com- 
plaint since  the  time  they  had  been  in  possession  and  after  the  con- 
veyance of  their  interest  to  the  defendant,  T.  Williard  Ready,  as  is 
herein  more  particularly  set  forth. 

IX.  The  defendant,  T.  Williard  Ready,  admits  that  on  the  26th  day 
of  January,  1920,  the  said  plaintiffs  demanded  a  conveyance  of  the 
said  premises  together  with  a  conveyance  of  the  personal  property  as 
set  forth  in  the  ninth  paragraph  of  plaintiffs'  bill  of  complaint.  The 
defendant  says  that  he  refused  to  make  conveyance  as  requested  for 
the  reason  that  he  was  under  no  obligation  so  to  do;  for  the  further 
reason  that  he  was  the  absolute  owner  of  all  the  property  described 
in  the  second  paragraph  of  plaintiffs'  bill  of  complaint,  excepting  only 
a  mortgage  held  thereon  by  Newman  &  Snell's  State  Bank,  which 
mortgage  is  of  record  and  which  was  executed  by  these  defendants 
T.  Williard  Ready,  and  Grace  Ready.  That  prior  to  the  time  of  said 
demand  the  plaintiffs  had  conveyed  by  good  and  sufficient  instrument 
of  conveyance  all  their  right,  title  and  interest  in  the  said  premises, 
to  the  defendant,  T.  Williard  Ready,  and  at  the  time  of  the  said  tender, 
and  of  the  demand  for  said  deed  and  bill  of  sale  the  said  plaintiffs  had 
no  right,  title  and  interest  in  and  to  said  property  and  were  therefore 
not  entitled  to  the  conveyance  as  demanded. 

X.  The  defendant,  T.  Williard  Ready,  denies  each  and  every  part  of 
the  tenth  paragraph  of  plaintiffs'  bill  of  complaint  and  in  further 
answer  thereto  says  at  the  time  of  the  purchase  of  Claflin's  interest  in 
said  premises  by  the  defendant,  T,  Williard  Ready,  on  the  10th  day  of 
May,  1919,  that  the  defendant,  T.  Williard  Ready,  was  the  owner  of 
all  the  interest  at  any  time  prior  to  that  time  owned  by  the  plaintiffs 
and    that  the   defendant,    T.    Williard    Ready,    purchased    said    premises 


290  THE  LAW  0F  LAND  CONTRACTS  [§  143 

in  order  to  acquire  all  of  the  title  to  said  premises  and  that  upon  the 
delivery  of  the  deed  from  the  said  Claflins  to  the  said  T.  Williard  Ready 
he  thereupon  became  the  owner  of  the  said  premises,  free  and  clear  of 
all  liens  and  encumbrances  and  free  and  clear  from  any  claim  of  the 
plaintiffs.  Defendant  admits  that  the  property  described  in  plaintiffs' 
bill  of  complaint  is  worth  twenty-five  thousand  dollars  and  in  answer 
hereto  he  says  that  he  purchased  said  property  from  the  said  plaintiff 
upon  a  valuation  of  Fifteen  thousand  dollars  and  that  he  paid  to  the 
plaintiffs  the  difference  between  the  amount  they  then  owed  to  F.  S. 
Claflin  and  Ella  Claflin  on  the  10th  day  of  June,  1917,  in  the  sum  of 
Fifteen  thousand  two  hundred  dollars,  which  sum  amounted  approx- 
imately to  thirty-five  hundred  dollars,  and  that  upon  the  said  payment 
of  thirty-five  hundred  dollars  by  the  said  Ready  to  the  said  plaintiffs 
they  executed  an  asignment  in  writing  to  the  defendant,  T.  Williard 
Ready,  of  all  his  interest  in  said  premises,  but  that  the  said  plaintiffs 
have  been  informed  and  understand  that  the  defendant,  T.  Williard 
Ready,  has  lost  his  copy  of  the  assignment  of  the  said  contract  set  forth 
in  the  third  paragraph  of  plaintiffs'  bill  of  complaint,  which  assignment 
was  signed  by  both  of  the  plaintiffs  and  that  the  said  plaintiffs  knowing 
that  property  had  advanced  in  value  from  fifteen  thousand  to  twenty- 
five  thousand  dollars  have  intentionally  and  for  the  purpose  of  deceiving 
and  defrauding  the  defendant  of  his  right  in  said  property,  knowingly 
and  intentionally  misrepresent  the  facts  as  to  the  assignment  so  made 
by  them  as  aforesaid,  seeking  thereby  to  cheat  and  defraud  the  defend- 
ant out  of  his  rights. 

XI.  Answering  the  plaintiffs'  eleventh  paragraph  of  their  bill  of  com- 
plaint, the  defendants  say  they  neither  deny  nor  admit  the  facts  set  forth 
therein,  except  this,  that  there  is  no  sum  due  the  defendants  and  there- 
fore the  defendants  say  that  the  bill  of  complaint  of  said  plaintiffs 
should  be  dismissed  with  the  defendants'  costs  to  be  taxed. 

Cross  Bill. — 

(1)  That  on  or  about  the  10th  day  of  May,  1919,  he,  said  defendant 
T.  Williard  Ready,  purchased  of  and  from  F.  S.  Claflin  and  Ella  M. 
Claflin,  situated  in  the  City  of  Niles,  Berrien  County,  Michigan,  and 
described  as: 

Lot  twenty-five  (25)  of  East  Lacey's  Addition  to  the  City  of  Niles 
and  Lot  twenty-four  (24)  except  the  east  two  (2)  feet  thereof,  E.  Lacey's 
Addition  to  the  City  of  Niles,  according  to  the  recorder's  plat  thereof, 
with  the  privileges  and  appurtenances  thereunto  belonging,  also  the 
following  personal  property:  all  the  furniture,  carpets,  pictures  and 
frames,  plated  ware,  utensils  of  every  name  and  nature  and  all  personal 
property  then  situated  in  said  hotel,  except  certain  personal  property 
reserved  by  J.  S.  Johnson  and  Sallie  Johnson  and  that  upon  his  purchase 
of  said  property  he  received  and  had  delivered  to  him  by  the  said  F.  S. 
Claflin  and  Ella  M.  Claflin  a  warranty  deed  of  said  property,  which  deed 
is  recorded  in  the  office  of  the  register  of  deeds  for  Berrien  County,  Mich- 
igan, to  which  record  defendant  refers  for  greater  certainty  and  offers  to 


s  143 1  SPECIFIC  PERFORMANCE  291 

prove  when  requested,  and  that  the  defendant,  T.  Williard  Ready,  there- 
upon became  the  owner  of  said  property,  subject  only  to  the  interest  of 
Francis  J.  Birney  and  Timothy  A.  Birney  under  a  certain  contract,  dated  the 
23rd  day  of  November,  1914,  a  copy  of  which  contract  is  set  forth  in  the 
third  paragraph  of  the  plaintiffs'  bill  of  complaint  and  to  which  the 
defendant  refers.  That  on  the  10th  day  of  May,  1919,  the  plaintiffs, 
Francis  J.  Birney  and  Timothy  A.  Birney,  had  no  interest  in  said  con- 
tract, having  prior  to  that  time  sold  and  conveyed  all  of  their  respective 
interests   therein  unto  the  said  T.  Williard   Ready. 

(2)  Defendant,  T.  Williard  Ready,  further  says  that  during  the  months 
of  May  and  June,  1917,  there  was  a  concerted  action  in  the  City  of 
Niles  toward  the  building  of  a  new  hotel,  and  the  demands  for  a  new 
hotel  became  great  and  insistent.  That  the  hotel  as  conducted  by  the 
plaintiffs,  who  were  then  in  possession  of  the  property  described  herein 
and  referred  to  in  the  plaintiffs'  bill  of  complaint,  were  conducting  a 
hotel,  and  said  hotel  as  conducted  by  the  plaintiffs  was  not  sufficient 
for  the  needs  of  the  City  of  Niles  and  the  public,  and  the  said  property, 
as  conducted  by  the  plaintiff,  depreciated  in  value,  and  it  was  repre- 
sented to  the  defendant,  T.  Williard  Ready,  by  the  plaintiffs,  that  they 
were  about  to  lose  their  interest  in  the  hotel  property  because  they 
were  unable  to  make  the  hotel  pay  financially.  That,  thereafter,  and 
thereupon,  on,  to-wit  the  7th  day  of  June,  1917,  the  defendant,  T.  Wil- 
liard Ready,  went  to  the  hotel  building  on  the  premises  hereinbefore 
described  and  occupied  by  the  plaintiffs  and  asked  what  they  were 
going  to  do  to  better  the  hotel  conditions  in  Niles.  That  the  plaintiffs 
thereupon  replied  to  the  defendant  that  they  would  sell  out  their  inter- 
est if  they  got  their  price.  That  thereupon  plaintiffs  agreed  to  sell  the 
property  hereinbefore  described  and  referred  to  in  the  second  paragraph 
of  plaintiff's  bill  of  complaint  and  the  defendant  agreed  to  purchase 
the  said  property  and  it  was  thereupon  agreed  that  the  purchase  price 
of  said  property  would  be  and  was  fifteen  thousand  two  hundred  dol- 
lars ($15,200),  and  out  of  the  said  $15,200  the  interest  and  equity  of 
F.  S.  Claflin  and  Ella  C.  Claflin  under  the  contract  hereinbefore  referred 
to  was  to  be  paid.  That  said  equity  at  said  time  amounted  to  approx- 
imately twelve  thousand  dollars  ($12,000)  and  that  said  equity  was 
payable  at  the  rate  of  $500  per  year  and  interest;  that  the  balance  or 
difference  between  the  equity  of  the  said  Claflins  and  the  said  sum  of 
Fifteen  thousand  two  hundred  dollars  ($15,200)  was  to  be  paid  in  cash 
by  the  said  defendant,  T.  Williard  Ready,  to  the  said  plaintiffs  and  there- 
upon the  plaintiffs  were  to  assign  and  did  assign  all  of  their  right, 
title  and  interest  in  the  said  contract  hereinbefore  referred  to,  to  the 
said  defendant,  T.  Williard  Ready.  That  after  the  said  agreement  had 
been  so  entered  into  by  the  parties,  the  plaintiffs  upon  the  one  part 
and  T.  Williard  Ready  upon  the  other  part,  the  said  agreement  was 
reduced  to  writing  and  one  copy  thereof  was  retained  by  the  plaintiffs 
and  deposited  in  the  safe  at  the  hotel  building  on  the  premises  above 
described  and  one  copy  thereof  was  delivered  to  the  defendant  T.  Wil- 


292  THE  LAW  OF  LAND  CONTRACTS  [§  143 

Hard  Ready.     That  said  copy  was  signed  by  the   plaintiffs  and  by  the 
defendant,  T.  Williard  Ready. 

That  in  said  agreement  so  signed  by  the  plaintiffs  and  by  the  defend- 
ant, T.  Williard  Ready,  the  said  plaintiffs  agreed  to  sell  and  the  defend- 
ant agreed  to  buy  the  premises  above  described  and  particularly  referred 
to  in  plaintiffs'  bill  of  complaint,  and  the  plaintiffs  did  therein  sell, 
assign,  transfer  and  convey  by  proper  words  of  assignment  and  con- 
veyance all  of  their  right,  title  and  interest  in  and  to  the  said  premises 
and  in  and  to  the  contract  set  forth  and  referred  to  in  the  third  par- 
agraph of  plaintiffs'  bill  of  complaint  and  did  herein  and  thereby  agree 
that  they  would  accept  and  did  accept  the  sum  of  Fifteen  thousand  two 
hundred  dollars  ($15,200)  for  said  interest,  and  out  of  such  sum  they 
would  pay,  satisfy,  discharge  the  interest  of  the  said  F.  S.  Claflin 
and  Ella  M.  Claflin  in  said  contract,  and  thereupon  the  defendant, 
T.  Williard  Ready,  agreed  to  pay  and  the  said  plaintiffs  agreed  to 
accept  as  a  payment  upon  said  contract  the  sum  of  Fifteen  thousand 
two  hundred  dollars  ($15,200)  for  their  interest  and  the  interest  of  the 
said  Claflins  and  afterwards  and  on  the  23rd  day  of  January,  1918,  the 
defendant,  T.  Williard  Ready,  paid  the  plaintiff  Five  hundred  dollars 
($500)  and  thereafter  and  on  the  20th  day  of  November,  1918,  the 
defendant,  T.  Williard  Ready,  paid  the  plaintiffs  to  apply  on  said  con- 
tract the  sum  of  One  Thousand  Dollars  and  on  divers  times  between 
the  third  day  of  June,  1917,  and  the  first  day  of  January,  1919,  the 
defendant,  T.  Williard  Ready,  paid  to  the  plaintiffs  several  sums  of 
money  paying  and  satisfying  all  the  interest  of  the  plaintiffs  in  and  to 
said  property  and  in  to  said  contract,  in  all  making  a  total  of  $4,125.31 
paid  by  the  defendant,  T.  Williard  Ready,  to  the  plaintiffs.  That  the 
defendant,  T.  Williard  Ready,  paid  to  F.  S.  Claflin  and  Ella  M.  Claflin 
$11,074.69,  which,  together  with  the  amount  paid  the  plaintiffs,  equals 
the  sum  of  $15,200,  the  purchase  price  agreed  upon.  That  immediately 
following  the  entering  into  of  said  written  agreement  by  the  said  plain- 
tiffs and  the  said  defendant  a  request  was  made  upon  F.  S.  Claflin  and 
Ella  M.  Claflin  that  they  consent  to  the  assignment  of  the  contract  from 
the  said  plaintiffs  to  the  said  defendant.  That  the  said  F.  S.  Claflin 
refused  to  consent  to  the  said  agreement  in  writing  when  requested; 
but  that  afterwards  and  by  his  conveyance  of  his  interest  and  all  of 
the  interest  of  said  F.  S.  Claflin  and  Ella  M.  Claflin  to  the  said  defend- 
ant, the  consent  to  the  said  assignment  from  the  plaintiffs  to  the 
defendant,  T.  Williard  Ready,  became  and  was  unnecessary  and  the 
said  deed  constituted  a  consent  in  writing  upon  the  part  of  the  said 
F.  S.  Claflin  and  Ella  M.  Claflin.  Defendant  further  shows  that  since 
the  making,  executing  and  delivering  of  the  said  contract  so  signed 
and  executed  between  the  defendant,  T.  Williard  Ready,  and  the  said 
plaintiffs  assigning  to  the  said  defendant  and  conveying  to  him  all  of 
the  interest  of  the  said  plaintiffs  in  said  property  he,  the  said  defend- 
ant, has  lost  the  said  contract  and  although  he  has  made  diligent 
search   among  his  papers  and   effects  he  has  been  unable  to  find  the 


§143] 


SPECIFIC  PERFORMANCE  293 


said  contract  and  he  has  requested  the  said  plaintiffs  to  produce  their 
contract,  and  he  does  hereby  request  and  demand  that  the  plaintiffs 
produce  said  contract  existing  between  them  and  that  when  produced 
the  said  contract  be  made  a  part  of  this  cross-bill  and  in  the  event 
that  said  contract  is  not  produced  that  parol  testimony  be  received  as 
to  the  contents. 

(3)  The  defendant,  T.  Williard  Ready,  further  shows  that  imme- 
diately after  the  entering  into  of  said  contract  wherein  the  defendant 
purchased  plaintiffs'  interest,  that  an  oral  understanding  and  agreement 
was  entered  into  between  the  defendant,  T.  Williard  Ready,  and  the 
plaintiffs  whereby  the  plaintiffs  were  to  operate  the  said  hotel  for  and 
on  behalf  of  the  said  defendant.  That  all  the  receipts  of  the  hotel 
after  the  payment  of  incidental  and  running  expenses  were  to  be  used 
in  the  repair  and  upkeep  of  said  hotel  and  the  payment  of  the  taxes 
and  insurance  thereon,  and  under  the  said  agreement  the  plaintiffs  have 
since  said  6th  day  of  June,  1917,  operated  the  said  hotel,  received  all 
the  profits  therefrom,  paid  the  repairs,  taxes  and  insurance  thereon  in 
accordance  with  the  said  agreement  with  the  said  defendant,  T.  Wil- 
liard Ready.  That  on  divers  times  and  occasions,  the  said  expenses 
exceeded  the  receipts  of  the  said  hotel  and  the  said  defendant,  T.  Wil- 
liard Ready,  was  required  to  advance  the  necessary  sums  for  repairs  and 
that  he  did  expend  for  repairs  on  said  hotel,  upwards  of  Two  Thousand 
Dollars  ($2,000),  all  with  the  knowledge  and  consent  of  the  plaintiffs 
and  acting  under  the  said  agreement  so  entered  into  as  aforesaid. 
That  the  said  property  has  since  said  date  greatly  increased  in  value 
and  is  now  of  the  value  of  $25,000  or  more.  That  the  defendant  intends 
to  build  a  hotel  thereon  and  construct  a  new  building  upon  the  real 
estate  therein  described;  that  during  the  last  eighteen  months  the 
hotel  business  has  been  exceedingly  profitable  and  the  said  plaintiffs 
have  received  large  sums  of  money  over  and  above  the  running  expenses 
of  said  hotel,  which  sums  they  have  refused  to  account  for  to  the  said 
defendant  and  that  the  defendant  is  informed  and  believes  that  upon 
an  accounting  of  the  receipts  and  expenditures  of  said  hotel  the  said 
plaintiffs  will  owe  and  do  now  owe  the  defendant  the  sum  of  five  thou- 
sand dollars,  for  which  sums  they  should  be  required  to  account  and 
pay.  That  the  plaintiffs  are  in  the  employ  of  the  defendant  and  are 
not  tenants  under  him.  That  the  defendant  has  repeatedly  requested 
and  demanded  that  possession  of  the  said  hotel  be  given  to  him  and 
that  an  accounting  be  had  by  the  plaintiffs  for  their  receipts  and 
expenditures  while  acting  for  and  on  behalf  of  the  defendant.  That 
the  defendant  is  now  entitled  to  the  possession  of  said  hotel  and  the 
plaintiffs  have  no  right,  title  or  interest  therein. 

Therefore,  the  defendant  prays: 

(1)  That  the  plaintiff  be  required  to  answer  this  cross-bill,  paragraph 
by  paragraph,  but  not  under  oath,  and  that  the  plaintiff  show  cause, 
if  any  thereby,  why  the  defendant  should  not  have  the  relief  prayed 
for  in  said  defendants'  cross-bill. 


294  THE  LAW  OF  LAND  CONTRACTS  [§  143 

(2)  That  the  defendant,  T.  Williard  Ready,  be  declared  and  decreed 
by  this  court  to  be  the  sole  owner  of  all  of  the  real  estate  and  personal 
property  herein  described  as  (description  of  property)  subject  only  to 
a  mortgage  held  thereon  by  Newman   &  Snell's   State  Bank. 

(3)  That  the  defendants,  Francis  J.  Birney  and  Timothy  A.  Birney, 
be  declared  by  this  court  to  have  sold,  transferred  and  conveyed  to 
T.  Williard  Ready  by  a  good  and  sufficient  conveyance  all  their  right, 
title  and  interest  in  and  to  the  said  property  and  that  they,  the  plain- 
tiffs, had  no  right,  title  or  interest  therein. 

(4)  That  the  defendant,  T.  Williard  Ready,  be  decreed  to  be  the  sole 
owner  of  the  property  hereinbefore  described  and  entitled  to  the  pos- 
session thereof 

(5)  That  an  accounting  be  had  between  the  parties  hereto  and  that 
the  plaintiffs  be  ordered  and  decreed  to  account  to  the  defendant  for 
all  of  the  receipts  and  disbursements  made  by  them  since  the  7th  day 
of  June,  1917,  for  and  on  behalf  of  the  defendant  in  the  operation  and 
maintenance  of  the  hotel  on  said  premises  and  that  the  defendant  have 
judgment  against  the  plaintiffs  for  the  amount  found  due  to  the  defend- 
ant upon  such  accounting. 

(6)  That  the  plaintiffs  be  required  to  quit,  surrender  and  deliver  up 
possession  of  all  the  said  premises  and  property  by  the  order  and  decree 
of  this  court. 

(7)  That  the  defendant  may  have  such  other  and  further  relief  in  the 
premises  as  shall  seem  just  and  equitable,  the  premises  being  con- 
sidered. 

And  the  defendant  will  ever  pray. 

GLENN    E.    WARNER, 
WILBUR  N.   BURNS, 
PHILLIP    A.    HADSELL, 

Attorneys  for  Defendant. 

(d)  Brief  for  the  Plaintiff. — It  is  the  settled  doctrine  of  equity  that 
the  form  of  a  transaction  will  never  preclude  inquiry  into  its  real  nature, 
but  in  all  cases  the  intention  of  the  parties  must  control  irrespective 
of  the  form,  and  consequently  if  a  conveyance  is  made  and  security  for 
money  in  whatever  form  the  conveyance  is  made  or  whatever  cover 
may  be  used  to  disguise  the  transaction  and  hide  its  real  character 
from  others  it  will  be  treated  and  held  as  a  mortgage.  Flynn  v.  Holmes, 
145  Mich.  606;  Darling  v.  Darling,  123  Mich.  307;  Crawford  v.  Osmun, 
70  Mich.  561;   Jones  on  Mortgages,  paragraph  20;   Cyc.  27,  991. 

In  the  case  of  Crawford  v.  Osmun,  Supra,  the  plaintiff  assigned  a  land 
contract  to  the  defendant  and  later  gave  him  a  quit  claim  deed.  Sub- 
sequently she  filed  a  Bill  of  Complaint  to  redeem  on  the  theory  that 
the  transaction  amounted  to  a  mortgage.  The  lower  court  dismissed 
the  Bill  of  Complaint  but  the  Supreme  Court  sustained  her  contention 
and  granted  the  relief  prayed. 

The  defendant  Ready  is  asking  for  the  specific  performance  of  a  con- 
tract to  sell  which  he  claims  was  made  on  the  7th  day  of  June,  1917 


S143]  SPECIFIC  PERFORMANCE  295 

He  is  not  entitled  to  specific  performance  of  this  contract  as  a  matter 
of  right. 

In  Solomon  v.  Shewitz,  185  Mich.  631,  this  court  said:  "However,  it 
has  apparently  been  held  that  the  jurisdiction  of  a  court  of  equity  to 
decree  specific  performance  of  contracts  is  not  a  matter  of  right  to  be 
demanded  ex  debito  justitiae,  but  application  invoking  this  power  of 
the  court  was  addressed  to  its  sound  and  reasonable  discretion  and  are 
granted  or  rejected  according  to  the  circumstances  of  the  case." 

In  Rust  v.  Conrad,  47  Mich.  454,  this  court  said:  "When  a  party  comes 
into  equity  it  should  be  very  plain  that  his  claim  is  an  equitable  one. 
If  the  contract  is  unequal,  if  he  has  bought  land  at  a  price  which  is 
held  inadequate,  if  he  has  obtained  the  assent  of  the  other  party  to 
unreasonable  provisions,  if  there  are  any  other  indications  of  over- 
reaching or  unfairness  on  his  part-  the  court  will  refuse  to  entertain  his 
case  and  turn  him  over  to  the  usual  remedies.  Specific  performance 
is  a  matter  of  grace  rather  than  a  matter  of  right."  If  the  defendant's 
actions  and  conduct  and  promises  were  such  as  to  induce  Birney  to 
surrender  a  valuable  arrangement  which  they  had  made  or  were  making 
with  the  Citizens  Committee,  then  he  does  not  come  into  this  court 
with  clean  hands.  The  language  of  Judge  Gilbert  in  Marks  v.  Gates, 
154  Fed.  482,  would  be  applicable  here:  "  'He  who  seeks  equity  must  do 
equity.'  The  doctrine  thus  applied  means  that  the  party  asking  the 
aid  of  the  court  must  stand  in  conscientious  relation  toward  his 
adversary;  that  the  transaction  from  which  his  claim  arises  must  be 
fair  and  just  and  that  the  relief  itself  must  not  be  harsh  and  oppressive 
upon  the  defendant."     25  R.  C.  L.,  224;   Rudisill  v.  Whitener,  15  Ln.  81. 

(e)  Brief  for  Defendant. — The  defendant  in  his  brief  takes  up  the 
matter  of  argument,  dealing  only  with  the  record  and  does  not  cite  any 
law  which  would  be  of  help  in  this  case. 

(f)  Holding  of  the  Court. — The  court  held  that  the  evidence  sustained 
the  defendant's  contention  that  plaintiffs  had  sold  their  equity  in  the 
premises  in  question  to  the  defendant  and  that  the  defendant  had  also 
purchased  all  of  plaintiffs'  vendor's  interest  in  the  property  and  a  decree 
for  the  defendants  upon  the  cross-bill  was  entered.  The  court  also 
held  that  the  several  negotiations  had  between  the  parties  culminated 
in  a  written  agreement.  The  presumption  is  that  it  contains  all  that 
the  parties  agreed  upon. 

LYLE  v.  MUNSON,  213  Mich.  250— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  of  Defendant. 

(d)  Exhibit  "A". 

(e)  Intervener's  Bill  of  Complaint. 

(f)  Answer  to  Intervener's  Bill  of  Complaint. 

(g)  Opinion  of  the  Court, 
(h)  Decree  of  the  Court. 

(i)  Authorities  Cited  by  Plaintiff —Brief  for  the  Plaintiff. 


296  THE  LAW  OF  LAND  CONTRACTS  [§  143 

(j)  Authorities  Cited  by  Defendant— Brief  for  the  Defendant. 

(a)  Brief  Statement  of  Fact.— This  was  an  action  brought  for  specific 
performance  where  the  plaintiff  relied  both  in  his  pleadings  and  proofs, 
upon  a  written  agreement  signed  by  the  parties,  and  also  upon  a  parol 
agreement  of  like  tenor  preceding  it. 

The  case  is  of  interest  for  the  reason  that  the  acts  of  part  performance 
relied  upon  are  unusually  slight,  the  court  grounding  its  decision,  to  a 
large  extent,  to  the  doctrine  of  equitable  estoppel. 

(b)  Bill  of  Complaint.— State  of  Michigan,  In  the  Circuit  Court  for  the 
County  of  Saginaw,  in  Chancery.  William  Lyle,  Plaintiff,  v.  William  C. 
Munson,  Defendant. 

To  the  Circuit  Court  for  the  County  of  Saginaw,  In  Chancery : 

I.  William  Lyle,  as  plaintiff  herein,  respectfully  shows  to  this  Honorable 
Court  that  he  is  a  resident  of  the  Township  of  Buena  Vista,  County  of 
Saginaw,  State  of  Michigan,  and 

II.  That  heretofore  and  some  time  during  the  month  of  February,  1919, 
that  one  William  C.  Munson,  a  widower,  of  the  Township  of  Buena  Vista, 
County  of  Saginaw  and  State  of  Michigan,  did  agree  with  him  orally 
to  let  and  lease  to  him  for  a  period  of  two  years  with  the  privilege  of 
purchasing  for  the  sum  of  three  thousand  five  hundred  ($3,500)  dol- 
lars, on  or  before  the  expiration  of  said  lease,  the  following  described 
property,  situated  and  being  in  the  Township  of  Buena  Vista,  County  of 
Saginaw,  State  of  Michigan,  to-wit:  Commencing  at  the  south  quarter 
(J)  post  of  section  seventeen  (17),  thence  north  ten  (10)  chains,  west 
four  (4)  chains,  south  ten  (10)  chains  and  east  four  (4)  chains  to  the 
beginning,  also  east  of  (£)  of  twenty-five  and  one-half  (25|)  acres  of 
land  described  as  follows:  Commencing  at  a  point  on  the  north  and 
south  quarter  (4)  line  of  section  seventeen  (17)  nine  (9)  chains,  seventy- 
one  (71)  links  from  the  south  boundary  line  of  said  section,  thence  run- 
ning north  on  said  quarter  (4)  line  seventeen  (17)  chains,  ninety  (90) 
links,  thence  west  parallel  with  the  south  boundary  fourteen  (14)  chains, 
twenty-five  (25)  links  to  a  point,  thence  south  parallel  with  said  quarter 
(I)  line  seventeen  (17)  chains,  ninety  (90)  links  to  northwest  corner  of 
land  formerly  owned  by  Lazette  B.  Munson,  thence  east  to  the  beginning. 

III.  That  then  and  at  sundry  times  thereafter  said  William  C.  Munson 
did  promise  plaintiff  to  reduce  said  agreement  to  writing  and  that  he 
did  repeatedly  confirm  said  contract  orally. 

IV.  That  relying  upon  said  oral  agreement  with  said  William  C.  Mun- 
son, your  plaintiff  did  on  or  about  March  10th,  1919,  give  up  the  home 
he  was  then  occupying  and  remove  therefrom  and  did  enter  into  and 
take  possession  of  the  property  shown  above  described  and  has  been  in 
continuous,  open,  notorious  and  undisputed  possession  thereof  from 
and  since  March  10th,  1919,  until  the  present  time  and  is  now  in  the 
possession  thereof,  and  during  this  time  has  made  various  and  sundry 
improvements  to  the  house  and  to  the  property  and  has  drawn  upon  the 
property  a  large  quantity  of  lumber  for  the  purpose  of  constructing  a 
barn. 


§  143] 


SPECIFIC  PERFORMANCE  297 


V.  That  said  William  C.  Munson  on  the  7th  day  of  April,  1919,  did 
reduce  said  oral  agreement  to  writing  and  did  by  written  instrument,  bear- 
ing date  aforesaid,  formally  contract  to  convey  to  your  plaintiff  the  above 
described  land,  a  copy  of  which  contract  was  annexed  to  the  original 
bill  of  complaint  in  this  cause  and  which  said  written  instrument  did  in 
pursuance  of  said  oral  agreement  previously  made,  contain  the  following 
language: 

"Provided  further  that  said  party  of  the  second  part  shall,  on  or  before 
the  expiration  of  this  lease  have  the  privilege  of  buying  said  above  de- 
scribed property  for  the  sum  of  Three  Thousand  Five  Hundred  ($3,500.00) 
Dollars." 

VI.  That  pursuant  to  the  oral  agreement  as  above,  as  embodied  in  the 
written  instrument  bearing  date  the  7th  day  of  April,  1919,  plaintiff  did 
on  the  5th  day  of  June,  1919,  notify  the  said  defendant,  William  C.  Mun- 
son, that  he  desired  to  buy  the  property  described  in  the  agreement  for 
the  sum  therein  mentioned. 

VII.  That  in  pursuance  of  the  terms  of  said  agreement,  and  in  conformity 
therewith  he  did  on  the  30th  day  of  July,  1919,  tender  to  the  said  William 
C.  Munson,  the  sum  of  three  thousand  five  hundred  ($3,500)  dollars 
lawful  money  of  the  United  States  of  America,  as  the  full  amount  of 
the  purchase  price  thereunder,  and  did  at  the  same  time  tender  to  the 
said  William  C.  Munson  a  warranty  deed,  a  copy  of  which  was  annexed 
to  the  bill  of  complaint  in  this  cause,  and  that  at  the  same  time  that  he 
so  made  the  tender  of  said  lawful  money  as  aforesaid  and  of  said  deed, 
he  requested  the  said  William  C.  Munson  to  then  and  there  execute 
the  said  deed  and  convey  the  said  property  to  the  said  plaintiff,  and  the 
said  William  C.  Munson  did  then  and  there  refuse  without  cause  or  reason 
to  execute  said  deed  and  accept  the  said  money  so  tendered  to  him  as 
aforesaid,  and  that  the  plaintiff  has  always  been  and  still  is  ready,  will- 
ing, and  able,  and  now  offers  fully  and  specifically  to  perform  the  said 
agreement  on  his  part  and  pay  the  said  sum  of  three  thousand  five 
hundred  dollars  on  receiving  a  deed  porperly  executed  by  the  said 
defendant,  William  C.  Munson,  running  to  him,  the  said  plaintiff,  William 
Lyle,  of  the  premises,  and 

VIII.  That  relying  on  said  agreement  as  above  your  plaintiff  did  on, 
to-wit,  the  20th  day  of  June,  1919,  enter  into  a  written  contract  with 
one  James  C.  Harris  whereby  he  contracted  to  sell  to  said  Harris  a 
portion  of  the  land  included  in  said  agreement  with  said  William  C. 
Munson,  and  did  obligate  himself  for  the  delivery  thereof  and  that  said 
James  C.  Harris  has  since  called  upon  him  to  perform  his  part  of  the 
contract,  and  your  plaintiff  is  unable  to  do  so  because  of  the  failure 
of  said  William  C.  Munson  to  deliver  a  deed  to  the  property  in  con- 
formance with  the  agreement  previously  had  with  him  by  your  plaintiff. 

IX.  That  your  plaintiff  in  such  tender  and  offer,  and  at  divers  other 
times  has  requested  the  said  William  C.  Munson  to  perform  his  part 
of  the  said  agreement  and  convey  to  your  plaintiff  all  those  certain  pieces 
or  parcels  of  land  situated  and  being  in  the  Township  of  Buena  Vista, 


298  THE  LAW  0F  LAND  CONTRACTS  [§  143 

County  of  Saginaw,  State  of  Michigan,  known  and  described  as  follows: 
Commencing  at  the  south  quarter  (J)  post  of  section  seventeen  (17), 
thence  north  ten  (10)  chains,  west  four  (4)  chains,  south  ten  (10)  chains, 
and  east  four  (4)  chains  to  the  beginning,  also  east  half  (!)  of  twenty- 
five  and  one-half  (25!)  acres  of  land  described  as  follows:  Commencing 
at  a  point  on  the  north  and  south  quarter  (|)  line  of  section  seventeen 
(17),  nine  (9)  chains,  seventy-one  (71)  links  from  the  south  boundary 
line  of  said  section,  thence  running  north  on  said  quarter  (J)  line  seven- 
teen (17)  chains,  ninety  (90)  links,  thence  west  parallel  with  the  south 
boundary  fourteen  (14)  chains,  twenty-five  (25)  links  to  a  point,  thence 
south  parallel  with  said  quarter  (J)  line  seventeen  (17)  chains,  ninety 
(90)  links  to  northwest  corner  of  land  formerly  owned  by  Lazette  E. 
Munson,  thence  east  to  the  beginning,  in  pursuance  to  said  agreement,  but 
the  said  William  C.  Munson,  although  well  able  to  perform  his  part  of 
said  agreement  to  convey  the  premises  heretofore  described  to  the  said 
plaintiff  has  refused  and  still  refuses  on  divers  frivolous  pretexts  so  to 
do,  and  does  still  refuse  to  execute  said  deed  in  compliance  with  the 
agreement  heretofore  set  forth. 

X.  That  said  plaintiff  has  fully  performed  on  his  part  every  part  of 
the  said  agreement  and  has  called  upon  defendant  to  perform  on  his  part. 

XI.  Said  plaintiff  further  avers  that  the  said  defendant,  William  C 
Munson,  is  negotiating  for  the  sale  of  the  whole  or  divers  parts  of  said 
property  and  threatening  to  sell,  assign,  mortgage,  encumber,  convey, 
transfer  and  dispose  of  the  whole  or  divers  parts  of  said  property,  and 
that  the  said  defendant,  William  C.  Munson,  ought  to  be  restrained  from 
selling,  assigning,  mortgaging,  encumbering,  conveying,  transferring  or 
disposing  of  said  property  contrary  to  the  terms  of  said  agreement  as 
made  and  entered  into  as  aforesaid. 

XII.  Said  plaintiff  further  shows  that  there  are  no  lands  in  the  vicinity 
of  the  lands  hereinbefore  described  which  can  be  purchased  by  said 
plaintiff  which  are  of  like  kind,  quality,  and  condition  and  suitable  to 
the  uses  and  purposes  of  said  plaintiff  and  that  he  will  suffer  irreparable 
injury  and  damage  unless  the  said  defendant  shall  be  compelled  to  per- 
form the  said  contract  and  convey  the  said  lands  to  the  said  plaintiff  in 
accordance  therewith,  and  unless  the  said  defendant  shall  be  restrained 
from  selling,  assigning,  mortgaging,  encumbering  conveying,  transferring, 
or  disposing  of  said  property  contrary  to  the  terms  of  the  said  agreement 
as  made  and  entered  into  with  said  plaintiff  as  aforesaid. 

XIII.  For  as  much  therefore  as  the  plaintiff  is  without  remedy  in  the 
premises  except  in  a  court  of  equity,  he  asks  the  aid  of  this  court  to 
the  end, 

1.  That  the  said  William  C.  Munson  who  is  made  a  party  defendant  to 
this  bill  of  complaint,  may  be  required  to  make  full  and  direct  answer 
to  the  same,  but  not  under  oath,  the  answer  under  oath  being  hereby 
waived. 

2.  That  the  court  may  decree  that  the  said  agreement  may  be  specially 
performed  and  that  the  said  defendant,  William  C.  Munson,  may  be  de- 


R  143 j  SPECIFIC  PERFORMANCE  299 

creed  to  specifically  perform  the  said  agreement  on  his  part  and  to  exe- 
cute to  the  said  plaintiff  a  deed  of  conveyance  of  the  following  described 
property  situated  in  the  Township  of  Buena  Vista,  County  of  Saginaw, 
State  of  Michigan,  to-wit:  Commencing  at  the  south  quarter  (\)  post  of 
section  seventeen  (17),  thence  north  ten  (10)  chains,  west  four  (4)  chains, 
south  ten  (10)  chains,  and  east  four  (4)  chains  to  the  beginning,  also 
east  half  of  twenty-five  and  one-half  (25£)  acres  of  land  described  as 
follows:  Commencing  at  a  point  on  the  north  and  south  quarter  (i)  line 
of  section  seventeen  (17),  nine  (9)  chains,  seventy-one  (71)  links  from 
the  south  boundary  line  of  said  section,  thence  running  north  on  said 
quarter  (J)  line  seventeen  (17)  chains,  ninety  (90)  links,  thence  west 
parallel  with  the  south  boundary  fourteen  (14)  chains,  twenty-five 
(25)  links  to  a  point,  thence  south  parallel  with  said  quarter  (J)  line 
seventeen  (17)  chains,  ninety  (90)  links  to  northwest  corner  of  land 
formerly  owned  by  Lazette  E.  Munson,  thence  east  to  the  beginning,  in 
due  form  of  law,  said  plaintiff  being  ready  and  willing,  and  hereby  offer- 
ing to  perform  the  said  contract  fully  and  specifically  on  his  part. 

3.  That  the  said  defendant,  William  C.  Munson,  may  be  restrained  by 
the  temporary  injunction  of  this  court  from  selling,  assigning,  mortgaging 
encumbering,  conveying,  transferring  or  disposing  of  in  any  manner  the 
said  real  estate  as  hereinbefore  described  until  a  final  hearing  may  be 
had  herein,  or  until  the  further  order  of  this  court. 

4.  That  the  said  injunction  may  be  made  permanent  against  the  said 
William  C.  Munson. 

5.  That  said  Plaintiff  may  have  such  further  or  different  relief  as  shall 
be  agreeable  to  equity  and  to  this  court  shall  seem  meet,  and  said  plain- 
tiff will  ever  pray,  etc. 

WILLIAM  LYLE. 
COOK  &  COOK, 

Attorneys  for  plaintiff. 

Business  address: 

204-56  Eddy  Building, 
Saginaw,  Michigan, 
(c)  Answer  of  Defendant. —  (Caption.)    This  defendant  reserving  to  him- 
self all  rights  of  exception  to  said  amended  bill  of  complaint  for  answer 
thereto,  says: 

Defendant  admits  the  statements  made  in  paragraphs  1,  2  and  3,  except 
that  he  denies  that  he  made  any  oral  agreement  with  said  plaintiff  to 
sell  to  said  plaintiff  said  land  or  to  give  him  the  privilege  of  purchasing 
the  same,  or  that  he  ever  promised  him,  orally,  to  reduce  such  agree- 
ment to  writing. 

,  II.  In  answer  to  paragraph  4,  defendant  says  that  the  only  possession 
had  by  said  plaintiff  to  said  land  was  that  of  a  tenant,  that  he  did  not 
make  any  improvements  of  value  to  anyone  except  himself,  as  a  tenant 
on  said  land,  but  on  the  contrary  he  agreed  to  make  said  improvements, 
and  many  more  which  he  has  failed  to  make  for  the  use  of  said  land. 


300  THE  LAW  0F  LAND  CONTRACTS         [§  143 

III.  In  answer  to  paragraph  5,  this  defendant  reiterates  paragraph  "A" 
in  Subdivision  8  of  his  answer  to  the  original  bill  of  complaint,  and  fur- 
ther says  that  he  denies  that  he  ever  intended  to  have  incorporated  in 
said  lease,  made  and  executed  on  Sunday,  as  in  said  answer  stated, 
the  language  as  quoted  in  said  paragraph  5;  that  said  lease  was  prepared 
by  his  son-in-law,  James  McDonald,  and  that  when  this  defendant  signed 
said  lease,  he  supposed  that  the  language  used  was  as  he  had  under- 
stood the  talk  had  in  reference  to  this  privilege  of  purchasing  said  land, 
which  was  to  the  effect  that  after  the  two  (2)  years  had  expired  for  which 
said  premises  were  leased,  that  if  said  plaintiff  wanted  to  purchase  said 
property,  at  that  time,  he  would  be  willing  to  sell  it  to  him  for  the  sum 
named.  That  he  did  not  read  said  lease;  did  not  know  the  language  used 
until  it  was  called  to  his  attention  at  the  time  said  plaintiff  talked  with 
him  in  relation  to  the  selling  of  said  land  to  Henry  J.  Dieckmann,  as 
stated  in  Subdivision  "C"  in  said  paragraph  8  of  his  said  answer  in 
said  original  bill  of  complaint. 

IV.  In  answer  to  the  remaining  paragraphs  of  said  amended  bill  of 
complaint,  this  defendant  says  that  the  allegations  therein  contained 
are  the  same  as  set  forth  in  said  original  bill  of  complaint,  and  that 
his  answer  thereto  is  the  same  as  stated  in  his  answer  to  said  original 
bill  of  complaint,  and  that  he  reiterates  such  answer  in  full,  the  same 
as  though  he  had  reincorporated  the  same  in  this  answer. 

V.  This  defendant  further  answering  said  amended  bill  of  complaint 
denies  all  and  every  allegation  therein  contained  not  herein  answered,  as 
aforesaid  and  denies  that  said  plaintiff  is  entitled  to  the  relief  or  any 
part  thereof  in  said  amended  bill  of  complaint  demanded,  and  prays 
the  same  advantage  of  this  answer  as  if  he  had  pleaded,  or  demurred  to 
the  said  amended  bill  of  complaint,  and  prays  that  the  same  be  dis- 
missed with  his  reasonable  cost  and   charges  in  this  behalf   sustained. 

WILLIAM  C.  MUNSON, 

Defendant, 

By  W.  J.  LAMSON, 

Attorney  for  Defendants. 

(d)  Exhibit  "A".— It  Is  Hereby  Agreed,  Between  William  C.  Munson, 
party  of  the  first  part,  and  William  Lyle,  party  of  the  second  part,  as 
follows:  The  said  party  of  the  first  part,  in  consideration  of  the  rents 
and  covenants  herein  specified,  does  hereby  let  and  lease  to  the  said 
party  of  the  second  part,  the  following  described  premises,  situated  and 
being  in  the  Township  of  Buena  Vista,  County  of  Saginaw  and  State  of 
Michigan,  to-wit:  Commencing  at  the  south  quarter  (J)  of  section  sev- 
enteen (17),  thence  north  ten  (10)  chains,  west  four  (4)  chains,  south  ten 
chains  and  east  four  (4)  chains  to  the  beginning;  also  east  half  (£)  of 
twenty-five  and  one-half  acres  of  land  described  as  follows:  Commencing 
at  a  point  on  the  north  and  south  quarter  (1)  line  of  section  seventeen 
(17),  nine  (9)  chains  seventy-one  (71)  links  from  the  south  boundary  line 
of  said  section  thence  running  north  on  said  quarter  (i)  line  seventeen 
(17)  chains  ninety  (90)  links,  thence  west  parallel  with  the  south  bound- 


§  143]  SPECIFIC  PERFORMANCE  301 

ary  fourteen  (14)  chains  twenty-five  links  to  a  point,  thence  south 
parallel  with  said  quarter  (I)  line  seventeen  (17)  chains  90  links  to 
northwest  corner  of  land  formerly  owned  by  Lazette  E.  Munson,  thence 
east  to  the  beginning,  for  the  term  of  two  years  from  and  after  the 
1st  day  of  March,  1919,  on  the  terms  and  conditions  hereinafter  men- 
tioned, to  be  occupied  for  farming. 

Provided,  That  in  case  any  rent  shall  be  due  or  unpaid,  or  if  default 
shall  be  made  in  any  of  the  covenants  herein  contained,  then  it  shall 
be  lawful  for  the  said  party  of  the  first  part,  certain  attorney,  heir 
representatives  and  assigns,  to  re-enter  into,  repossess  the  said  premises, 
and  the  said  party  of  the  second  part  and  each  and  every  other  occupant, 
to  remove  and  put  out. 

And  the  said  party  of  the  second  part  does  hereby  hire  the  said  premises 
for  the  term  of  two  years  as  above  mentioned,  and  does  covenant  and 
promise  to  pay  to  the  said  party  of  the  first  part,  his  representatives 
and  assigns,  for  rent  of  said  premises  for  said  term  the  sum  of  Three 
hundred  dollars  per  year,  payable  as  follows:  One  hundred  and  fifty 
dollars  on  the  1st  day  of  August,  1919,  and  one  hundred  and  fifty  dol- 
lars every  six  months  thereafter  until  the  whole  of  six  hundred  ($600.00) 
is  paid. 

Provided  further  that  said  party  of  the  second  part  shall,  on  or  before 
the  expiration  of  this  lease  have  the  privilege  of  buying  said  above  de 
scribed  property  for  the  sum  of  three  thousand  five  hundred  dollars 
($3500.00). 

Said  party  of  the  second  part  further  covenents  that  he  will  not  assign 
nor  transfer  this  lease,  or  sub-let  said  premises,  or  any  part  thereof, 
without  the  written  assent  of  said  party  of  the  first  part. 

And  also,  that  said  party  of  the  second  part  will  at  his  own  expense, 
during  the  continuance  of  this  lease  keep  the  said  premises  and  every 
part  thereof  in  as  good  repair,  and  at  the  expiration  of  the  term,  yield 
and  deliver  up  the  same  in  like  condition  as  when  taken,  reasonable 
use,  and  wear  thereof  and  damage  by  the  elements  excepted. 

And  the  said  party  of  the  first  part  does  covenant  that  the  said  party 
of  the  second  part,  on  paying  the  aforesaid  installments  and  performing 
all  the  covenants  aforesaid,  shall  and  may  peacefully  and  quietly  have, 
hold,  and  enjoy  the  said  demised  premises  for  the  terms  aforesaid. 

The  covenants,  conditions  and  agreements  made  and  entered  into 
by  the  several  parties  hereto,  are  declared  binding  on  their  respective 
heirs,  representatives  and  assigns. 

Witness:  Our  hands  and  seals  this  7th  day  of  April,  1919. 

W.  C.  MUNSON,  L.  S. 
WILLIAM   LYLE,   L.   S. 
Signed,  sealed  and  delivered  in  presence  of 

james  e.  Mcdonald. 

(e)  Interveners'  Bill  of  Complaint. —  (Caption).  James  C.  Harris,  John 
Y.  Wickes  and  William  J.  Wickes,  Jr.,  as  intervenors  in  the  above  entitled 
cause,  respectfully  show: 


302  THE  LAW  0F  LAND  CONTRACTS  [§  143 

1.  That  William  C.  Munson  did  by  written  instrument  dated  the  7th 
day  of  April,  A.  D.  1919,  contract  to  convey  to  one  William  Lyle,  certain 
land  situated  in  the  Township  of  Buena  Vista,  County  of  Saginaw,  and 
State  of  Michigan,  a  copy  of  which  contract  was  annexed  to  the  bill  of 
complaint  of  William  Lyle,  plaintiff  in  the  above  entitled  cause,  reference 
to  which  is  hereby  made. 

2.  That  said  intervenors  are  informed  and  believe  and  therefore  charge 
the  fact  to  be  that  the  said  William  Lyle  entered  into  possession  of  said 
premises  on,  to-wit:  March  1st,  1919,  by  and  under  an  oral  agreement  with 
said  William  C.  Munson  and  which  said  oral  agreement  was  thereafter 
reduced  to  writing  as  hereinbefore  set  forth.  That  said  William  Lyle 
by  and  under  said  agreements  aforesaid  has  been  in  the  continuous,  open, 
notorious  and  undisputed  possession  of  said  premises  from  and  since  the 
said,  to-wit,  March  1st,  1919,  until  the  present  time  and  is  now  in  pos- 
session thereof. 

3.  That  said  intervenors  entered  into  an  agreement  among  themselves 
for  the  purchase  of  a  portion  of  the  property  covered  by  said  contract  of 
April  7th,  A.  D.  1919. 

4.  That  in  conformance  with  said  agreement  and  relying  upon  the 
contract  made  and  executed  the  7th  day  of  April,  A.  D.  1919,  between 
the  said  William  C.  Munson  and  the  said  William  Lyle,  and  upon  the 
continuous  and  undisputed  possession  of  said  William  Lyle  as  afore- 
said, said  intervenor,  James  C.  Harris,  did  on,  to-wit,  the  20th  day  of 
June,  A.  D.  1919,  enter  into  a  written  contract  with  the  said  William 
Lyle  for  the  purchase  of  a  portion  of  the  land  covered  by  said  contract 
of  April  7th,  A.  D.  1919,  a  copy  of  which  written  contract  between  the 
said  William  Lyle  and  the  said  James  C.  Harris  is  hereto  annexed,  and 
made  a  part  hereof. 

5.  That  in  conformance  with  the  previous  agreement  between  them 
said  intervenor,  James  C.  Harris,  did  on,  to-wit,  the  21st  day  of  June, 
A.  D.  1919,  enter  into  a  written  contract  with  the  said  John  Y.  Wickes 
and  William  J.  Wickes,  Jr.,  whereby  he  did  assign  and  grant  to  each  an 
undivided  one-third  interest  in  and  to  the  aforesaid  contract  with  the 
said  William  Lyle,  a  copy  of  which  is  hereto  annexed  and  made  a  part 
hereof  and  reference  to  which  is  herewith  made. 

6.  That  said  intervenors  are  informed  and  believe  and  therefore  charge 
the  fact  to  be  that  on,  to-wit,  the  5th  day  of  June,  A.  D.  1919,  the  said 
William  Lyle  did  notify  the  said  William  C.  Munson  that  he  desired  to 
buy  the  above  described  property  in  conformance  with  the  contract  be- 
tween them  dated  April  7th,  A.  D.  1919. 

7.  That  said  intervenors  are  further  informed  and  believe  and  there- 
fore charge  the  fact  to  be  that  the  said  William  Lyle  did  on,  to-wit,  the 
30th  day  of  July,  A.  D.  1919,  tender  to  the  said  William  C.  Munson  the 
sum  of  thirty-five  hundred  ($3500.00)  dollars,  lawful  money  of  the  United 
States  of  America,  as  the  full  amount  of  the  purchase  price  according  to 
said  contract  of  April  7th,  A.  D.  1919,  and  did  at  the  same  time  tender 
to  the   said  William   C.   Munson,  a  warranty  deed,   a  copy  of  which  is 


§  143]  SPECIFIC  PERFORMANCE  303 

annexed  to  the  bill  of  complaint  of  said  William  Lyle,  plaintiff  in  the 
above  entitled  cause  and  reference  to  which  is  herewith  made,  and  did 
request  the  said  William  C.  Munson  then  and  there  to  execute  the  said 
deed  and  convey  the  said  property  to  the  said  William  Lyle  and  that  the 
said  William  C.  Munson  did  then  and  there  refuse,  without  cause  or  rea- 
son, to  execute  the  said  deed  or  to  accept  the  money  so  tendered  to 
him  as  aforesaid  and  that  the  said  William  Lyle  has  always  been  and 
still  is  ready,  willing,  and  able  to  perform  the  said  agreement  on  his 
part,  and  pay  the  sum  of  thirty-five  hundred  ($3500.00)  dollars  on  receipt 
of  a  deed  properly  executed  by  the  said  William  C.  Munson  to  him  of  the 
said  premises. 

8.  That  said  interveners  are  informed  and  believe  and  therefore  charge 
the  fact  to  be  that  the  said  William  Lyle  has  repeatedly  and  at  divers 
times  requested  the  said  William  Munson  to  perform  his  part  of  the  said 
agreement  of  April  7th,  A.  D.  1919,  and  to  convey  to  him  the  land  therein 
described,  and  that  the  said  William  C.  Munson,  although  well  able  to 
perform  his  part  of  the  agreement  of  April  7th,  A.  D.  1919,  has  refused 
and  still  refuses  on  divers  frivolous  pretexts  so  to  do. 

9.  That  because  of  the  proximity  to  the  city  of  the  property  described 
in  said  contract  of  April  7th,  A.  D.  1919,  by  and  between  the  said  William 
C.  Munson  and  the  said  William  Lyle  and  because  of  the  platting  into 
lots  of  property  in  its  immediate  vicinity,  and  because  of  much  proposed 
building  nearby,  some  of  which  has  already  been  started,  and  because 
also  of  the  great  and  increasing  demand  for  lots  there,  the  value  of  the 
said  property  has  greatly  increased  and  it  is  worth  today  far  in  excess  of 
thirty-five  hundred  ($3500.00)  dollars. 

10.  That  the  value  of  said  property  has  been  and  is  now  rapidly  increas- 
ing and  promises  to  continue  to  do  so  and  there  is  no  other  property 
similarly  situated  that  can  be  secured  by  said  intervenors. 

11.  That  said  intervenors  have  contracted  in  good  faith  under  and 
relying  upon  the  said  contract  of  April  7th,  A.  D.  1919,  by  and  between 
the  said  William  C.  Munson  and  the  said  William  Lyle.  with  no  knowl- 
edge or  notice  whatever  of  any  possible  defects  therein  and  also  relying 
upon  the  undisputed  possession  of  the  said  William  Lyle  in  conformance 
with  the  said  contract  dated  April  7th,  A.  D.  1919. 

12.  That  on,  to-wit,  the  20th  day  of  June,  A.  D.  1919,  at  the  time  the 
written  contract,  copy  of  which  is  hereto  annexed  and  which  is  herewith 
incorporated  as  a  part  of  the  bill  of  complaint,  was  executed  by  and  be 
tween  the  said  William  Lyle  and  the  said  James  C.  Harris,  said  inter- 
vener James  C.  Harris  did  inform  him  that  he  was  prepared  and  ready 
and  anxious  to  pay  over  the  money  and  take  a  deed  to  the  property  imme- 
diately and  at  any  time  said  William  Lyle  was  able  to  convey  the  said 
property. 

13.  That  repeatedly  and  at  sundry  times  since  then  the  said  intervenor, 
James  C.  Harris,  has  informed  the  said  William  Lyle  that  he  was  ready 
at  all  times  to  pay  over  the  purchase  price  of  the  property  described  in 
said   contract   dated    the   20th   day   of  June,   1919,   by   and   between   the 


304  THE  LAW  0F  LAND  CONTRACTS  [§  143 

said  William  Lyle  and  the  said  James  C.  Harris,  and  has  made  offer 
so  to  pay  upon  delivery  to  him  of  a  sufficient  deed  conveying  the  title 
to  the  said  property  to  said  James  C.  Harris  or  to  all  of  said  intervenors 

14.  That  on,  to-wit,  the  16th  day  of  August,  A.  D.  1919,  the  said  James 
C.  Harris  by  Louis  Smith,  his  agent,  did  notify  said  William  Lyle  in 
writing  that  he  was  prepared  to  purchase  the  property,  that  the  money 
would  be  paid  over  immediately  upon  the  execution  to  him  of  a  sufficient 
deed  conveying  the  title  and  that  he  called  upon  said  William  Lyle  to 
perform  according  to  the  terms  of  said  contract  of  June  20,  A.  D.  1919. 

15.  That  said  James  C.  Harris,  John  Y.  Wickes  and  William  J.  Wickes, 
Jr.,  have  at  all  times  held  themselves  in  readiness  to  pay  over  the  pur- 
chase price  immediately  upon  delivery  to  them  or  to  any  of  them  of  a 
sufficient  deed  conveying  the  title  to  said  property  and  that  they  still 
hold  themselves  so  in  readiness  and  herewith  make  formal  offer  of  pay- 
ment, but  the  said  William  Lyle  has  been  prevented  from  performing  his 
part  of  said  contract  of  June  20th,  A.  D.  1919,  by  the  failure  and  refusal 
of  said  defendant,  William  C.  Munson,  to  convey  the  property  to  him  in 
conformance  with  the  contract  dated  April  7th,  A.  D.  1919,  by  and  between 
the  said  William  C.  Munson  and  the  said  William  Lyle. 

16.  That  said  intervenors  therefore  have  such  an  interest  in  the  above 
entitled  cause  that  the  failure  to  enforce  the  above  mentioned  contract 
of  April  7th,  A.  D.  1919,  between  the  said  William  C.  Munson  and  the 
said  William  Lyle,  would  result  in  great  wrong  and  in  grievous  and 
irreparable  injury  to  them. 

Wherefore  your  intervenors  pray: 

1.  That  the  said  William  C.  Munson  and  the  said  William  Lyle,  defend- 
ants hereto,  may  without  oath,  answer  upon  oath  being  hereby  waived, 
full,  true  and  perfect  answer  make,  to  the  matters  made  and  stated  in 
this  bill  of  complaint. 

2.  That  the  said  contract  dated  April  7th,  A.  D.  1919,  between  the 
said  William  Lyle  and  the  said  William  C.  Munson  may  be  decreed  to  be 
a  valid  and  binding  obligation  upon  said  William  C.  Munson  by  this  court 
and  that  the  said  William  C.  Munson  may  be  decreed  specifically  to  per- 
form the  said  contract,  and  make  a  good  and  sufficient  conveyance  of  the 
title  of  said  lands  to  the  said  William  Lyle. 

3.  That  the  said  William  Lyle  be  decreed  specifically  to  perform  the 
said  contract  with  the  said  James  C.  Harris  of  June  20,  A.  D.  1919,  and 

4.  That  said  intervenors  may  have  such  other  or  further  relief  in  the 
premises  as  shall  be  agreeable  to  equity  and  good  conscience  and  your 
intervenors  will  ever  pray. 

JAMES  C.  HARRIS, 

JOHN  Y.  WICKES, 

WILLIAM  J.  WICKES,  JR. 
(Verification.) 


§143| 


SPECIFIC  PERFORMANCE  305 


(f)  Answer  to  Intervenors'  Bill  of  Complaint— (Caption.)  This  defend- 
ant reserving  to  himself  all  right  of  exceptions  to  the  said  Intervenors' 
hill  of  complaint  for  answer  thereto,  says: 

1.  In  answer  to  paragraphs  one  and  two,  he  denied  the  allegations 
therein  contained,  except  in  this,  that  he  admits  that  he  had  rented  to 
said  plaintiff  the  premises  mentioned  in  said  bill  in  January,  1919. 

2.  As  to  the  allegatons  contained  in  paragraphs  three,  four  and  five 
of  said  bill,  this  defendant  avers  that  he  is  a  stranger,  and  can  neither 
admit  nor  deny  the  same;  that  it  is  immaterial  to  said  action,  and  there- 
fore neither  admits  nor  denies  the  same. 

'3.  In  answer  to  paragraph  six,  said  defendant  admits  that  said  William 
Lyle  informed  him  some  time  prior  to  the  commencement  of  said  action 
that  he  desired  to  purchase  said  property,  the  exact  date  he  is  unable  to 

give. 

4.  In  answer  to  paragraphs  seven  and  eight,  defendant  admits  that  said 
plaintiff  tendered  to  him  certain  money,  the  amount  of  which  he  does 
not  know,  and  that  he  requested  deed  of  the  property  mentioned  in  said 
bill;  that  he  refused  to  accept  said  money  or  to  execute  said  deed. 

5.  Defendant  admits  the  statements  in  paragraphs  nine  and  ten.  In 
answer  to  paragraph  eleven  of  said  bill,  defendant  denies  that  said 
intervenors  arranged  to  purchase  said  property  from  said  Lyle  in  good 
faith,  or  that  they  took  the  required  or  proper  precaution  to  inform  them- 
selves of  the  contract  relation  existing  between  this  defendant  and  said 
plaintiff.  In  answer  to  paragraphs  twelve,  thirteen,  fourteen  and  fifteen, 
this  defendant  says  he  has  no  knowledge  sufficient  to  form  a  belief,  and 
therefore  neither  admits  nor  denies  the  same. 

6.  This  defendant  further  answering  said  bill  says,  that  he  has  never 
had  any  contract  relation  whatever  with  said  intervenors  or  either  of 
them;  that  as  to  any  deal  that  they  may  have  had  with  said  William 
Lyle,  he  is  a  stranger  and  in  no  manner  or  form  liable  or  responsible  for; 
that  while  he  believed  that  some  persons,  to  this  defendant  unknown, 
were  attempting  to  purchase  said  real  estate  of  him  through  said  Lyle. 
he  did  not  know  who  they  were  until  he  received  said  bill  of  complaint. 

7.  Defendant  says,  that  in  January,  1919,  he  orally  rented  to  said  Lyle 
the  property  described  in  said  bill  of  complaint,  and  that  on  Sunday, 
the  6th  day  of  April,  1919,  he  executed  with  said  Lyle  the  lease,  a  copy 
of  which  is  attached  to  said  bill  of  complaint  of  said  Lyle  in  said  cause, 
and  marked  Exhibit  "A";  that  said  lease  was  dated  the  7th  day  of  April. 
1919,  because  said  6th  day  of  April  was  Sunday;  that  said  lease  so  made 
and  executed  on  Sunday  has  never  been  changed  or  ratified  by  this 
defendant  on  any  secular  day. 

8.  This  defendant  further  answering,  denies  that  said  intervenors  have 
in  good  faith  become  interested  in  the  transaction  between  said  plaintiff 
and  this  defendant,  and  they  are  not  good  faith  contractors  for  the 
purchase  of  said  real  estate,  and  he  denies  that  they  or  either  of  them 
are  entitled  to  the  relief  or  any  part  thereof  in  their  said  bill  of  com 
plaint  demanded,  and  prays  the  same  advantage  of  this  answer  as  if  he 


306  THE  LAW  OF  LAND  CONTRACTS  [§  143 

had  pleaded  or  demurred  to  the  said  bill  of  complaint,  and  prays  that 

the  same  be  dismissed  with  his  reasonable  cost  and  charges  in  his  behalf 

sustained. 

W.  J.  LAMSON,  WM.   C.   MUNSON, 

Attorney  for  Defendant,  Defendant, 

B.  J.  VINCENT,  By  W.   J.   LAMSON, 
Counsel  for  Defendant.  His   Attorney, 
(g)   Opinion   of  the   Court. —  (Caption.)  The    Court:      This   is   a  case 

brought  on  the  chancery  side  of  the  court,  by  William  Lyle,  against  William 

C.  Munson,  asking  for  the  specific  performance  of  a  contract  which  the 
plaintiff  claims  to  have  been  made  with  the  defendant,  with  reference  to 
the  rental  and  the  purchase  of  a  piece  of  land  consisting  of  about  twenty 
acres,  in  the  Township  of  Buena  Vista,  in  this  county. 

It  is  the  claim  of  Mr.  Lyle,  the  plaintiff,  that  he  first  had  oral  nego- 
tiations with  Mr.  Munson,  the  defendant,  with  reference  to  the  renting 
of  this  land,  and  the  purchase  of  the  same,  and  that  as  a  result  of  those 
negotiations  an  oral  agreement  was  made  to  the  effect  that  Mr.  Lyle  was 
to  be  permitted  to  go  upon  the  premises  and  have  the  same  as  the  tenant 
of  Mr.  Munson,  for  the  period  of  two  years,  for  which  he  was  to  pay 
him  a  semi-annual  rental  of  one  hundred  and  fifty  dollars.  He  was  also, 
any  time  during  the  period  of  the  lease,  to  have  an  option  to  purchase  this 
land  for  the  sum  of  thirty-five  hundred  dollars. 

This  claim  is  disputed  by  the  defendant  in  the  case.  He  admits  having 
talks  with  the  defendant  with  reference  to  the  renting  of  the  place,  but 
he  denies  that  he,  at  any  time,  orally  agreed  with  him  that  he  was  to 
have  the  privilege  at  any  time  during  the  period  of  two  years,  which 
was  to  be  the  rental  period,  to  purchase  the  land  for  the  sum  of  thirty- 
five  hundred  dollars.  He  claims  the  mention  of  the  purchase  was  made 
at  the  sum  of  thirty-five  hundred  dollars,  but  that  this  had  reference 
to  the  purchase  of  the  place  at  the  expiration  of  the  period  for  two  years, 
and  if  at  the  end  of  the  lease,  of  two  years,  it  was  the  desire  of  Mr. 
Lyle  to  purchase  the  place  for  thirty-five  hundred  dollars,  that  he  had  the 
right  to  do  so,  and  that  he  would  deed  it  to  him. 

That  is  the  first  question  of  fact  that  becomes  necessary  for  the  court 
to  determine.  This  being  a  chancery  case,  it  is  necessary  for  the 
court,  unfortunately,  to  determine  the  question  of  fact  in  the  case  as 
well  as  the  questions  of  law. 

I  can  appreciate  the  fact  that  it  is  not  always  a  pleasant  duty  for  a 
jury  to  determine  those  things,  and  it  is  particularly  so  for  the  court 
in  a  case  of  this  kind. 

It  is  the  further  claim  of  the  plaintiff  in  the  case  that  he  insisted  that 
this  oral  agreement  be  reduced  to  writing,  and  to  that  end  called  upon 
Mr.  Munson  several  times,  and  asked  him  to  do  so.  Mr.  Munson  put 
him  off  from  time  to  time,  because  Mr.  McDonald,  his  son-in-law,  who 
was  to  draw  the  lease,  was  busy  and  was  not  in  a  position  to  attend 
to  the  matter  at  that  time.  But  the  plaintiff  claims  that  finally,  on  the 
seventh  day  of  April,  1919,  being  Monday,  he  went  to  the  home  of  Mr. 


«  1431  SPECIFIC  PERFORMANCE  307 

McDonald,  where  the  defendant  Mr.  Munson  lived,  and  Mr.  McDonald 
did  draw  up  the  lease  and  that  the  same  was  signed  and  executed  by 
both  of  the  parties,  and  the  lease  is  produced  here  in  court,  has  been 
offered  and  received  in  evidence,  and  has  been  known  throughout  the 
trial  as  Exhibit  "A".  This  lease,  among  other  things,  which  are  the 
usual  covenants  and  agreements  in  lease,  provides:  "Provided  further 
that  the  said  party  of  the  second  part  shall,  on  or  before  the  expiration 
of  this  lease,  have  the  privilege  of  buying  said  above  described  property 
for  the  sum  of  three  thousand  five  hundred  dollars." 

The  defendant  denies  that  this  lease  was  executed  on  the  7th  day  of 
April,  notwithstanding  it  was  dated  on  that  day,  and  he  claims  that  it  was 
executed  on  the  6th  day  of  April,  the  day  preceding,  which  would  be  on 
Sunday,  and  that  because  of  the  fact  it  was  executed  on  Sunday,  the 
lease  is  absolutely  void,  that  the  written  lease  is  absolutely  void  insofar  as 
affecting  the  parties. 

It  becomes  the  duty  of  the  court  to  determine  as  the  second  question 
of  fact  whether  or  not  this  lease  was  executed  upon  Sunday,  as  claimed 
by  the  defendant,  or  upon  Monday,  as  claimed  by  the  plaintiff  in  the 
case. 

The  court  has  no  hesitancy  in  determining,  as  a  matter  of  fact,  in 
this  case,  that  the  lease  was  executed  upon  Sunday.  The  court  has  had 
the  opportunity  of  seeing  the  witnesses  upon  the  stand  who  testified  upon 
that  subject.  The  great  weight  of  the  testimony  shows  that  the  contract 
or  the  lease  was  executed  on  that  day.  The  court  has  confidence  in  the 
testimony  of  witnesses  who  have  testified  to  its  execution  on  Sunday; 
witnesses  who  are  personally  known  to  the  court,  and  in  who  the  court 
has  confidence  with  respect  to  their  veracity.  The  court  therefore  finds 
that  the  contract  was  executed  upon  Sunday,  and  so  far  as  the  written 
contract  is  concerned,  is  void  and  of  no  binding  force  or  effect  upon  either 
of  the  parties  in  the  case. 

The  other  question  presented  to  the  court  for  its  consideration  is 
whether  or  not  there  has  been  such  a  performance  of  the  oral  contract 
to  purchase  this  land  as  would  warrant  the  court  in  specifically  perform- 
ing that  contract,  and  to  take  it  out  of  the  statute  of  frauds,  which  pro- 
vides that  contracts  with  reference  to  the  sale  of  real  estate  must  be  in 
writing. 

The  court  has  had  the  advantage  of  seeing  the  witnesses  upon  the 
stand  with  reference  to  this  matter,  and  has  no  hesitancy  in  arriving  at 
the  conclusion  of  fact  which  it  does  upon  this  particular  matter. 

It  is  quite  apparent  to  the  court  that  the  enhancement  of  the  value  of 
this  real  estate  has  considerable  to  do  with  the  conduct  of  both  parties 
in  the  case.  In  fact  it  is  quite  apparent  to  the  court  that  real  estate 
men  are  very  anxious  to  have  Mr.  Lyle  put  in  position  so  that  he  can 
transfer  the  property  to  them,  and  the  same  situation  exists  with  ref- 
erence to  Mr.  Munson.  However  that  may  be,  this  case  is  not  to  be 
determined  upon  the  question  of  whether  or  not  the  real  estate  has 
enhanced  in  value,  but  as  to  the  rights  of  the  parties,  irrespective  of 


308  THE  LAW  OF  LAND  CONTRACTS  [§  143 

the  value  of  the  land,  and  irrespective  of  whether  or  not  real  estate  men 
are  anxious  to  buy  it  from  whichever  party  is  successful  in  the  case. 

The  plaintiff  contends  that  there  was  an  oral  contract,  and  that  it 
has  substantiated  that  oral  contract  by  a  preponderance  of  the  evidence 
in  the  case;  that  that  oral  contract  has  been  partly  performed,  and 
that  that  oral  contract  consisted  of  an  agreement  between  Mr.  Lyle  and 
Mr.  Munson  whereby  Mr.  Lyle  agreed,  or  whereby  Mr.  Munson  agreed 
at  any  time  within  a  period  of  two  years  to  sell  this  property  to  Mr. 
Lyle  for  the  sum  of  thirty-five  hundred  dollars,  and  that  in  addition  to 
that  he  agreed  that  he  should  have  the  right  to  remain  upon  the  premises, 
as  his  tenant,  for  the  period  of  two  years,  at  a  stipulated  rental  of  three 
hundred  dollars  per  year. 

The  court  cannot  come  to  the  conclusion  that  the  plaintiff  in  this  case 
has  shown  such  a  contract  as  would  entitle  it  to  a  specific  performance, 
by  the  decree  of  the  court.  From  the  testimony  of  the  witnesses,  from 
the  opportunity  the  court  has  had  of  seeing  the  witnesses  upon  the  stand, 
and  observing  their  conduct  and  observing  the  manner  in  which  they 
gave  their  testimony,  I  am  now  satisfied  that  the  minds  of  the  parties 
met  in  such  a  contract  as  would  be  certain  and  definite  to  the  extent  that 
the  court  at  this  time  would  be  warranted  in  decreeing  a  specific  per- 
formance of  this  particular  contract.  Mr.  Munson  testified  that  he  had 
no  agreement  with  him  whereby  he  was  to  convey  it  to  him  at  any  time 
during  the  two  years  of  his  occupancy  of  the  premises.  I  believe  Mr. 
Munson's  testimony,  I  am  satisfied  that  that  was  his  idea  of  the  situation. 
If  that  was  not  the  idea  of  the  plaintiff,  the  minds  of  the  parties  did  not 
seem  to  meet  on  any  particular  contract  which  permitted  the  plaintiff  at 
any  time  during  the  period  of  two  years  to  pay  thirty-five  hundred  dollars 
and  that  Mr.  Munson,  the  defendant,  would  deed  the  place  to  him. 

A  contract,  to  be  specifically  performed,  must  be  definite,  must  be 
certain.  The  rights  of  the  party  who  is  asking  that  the  contract  be  spe- 
cifically performed  must  have  been  in  some  way  seriously  interfered  with. 
I  am  not  satisfied  that  this  man  went  into  possession  of  the  place  with 
the  idea  that  he  was  going  to  purchase  it.  His  apparent  idea  in  entering 
possession  of  the  place  was  as  a  renter.  He  was  a  renter  in  the  city. 
It  may  have  placed  him  a  little  closer  to  his  work  that  he  was  doing.  But 
his  principal  motive  in  going  into  possession  of  the  place  was  his  idea  of 
occupying  the  premises  as  a  renter,  is  the  opinion  of  the  court  from  the 
evidence  in  the  case. 

The  court  therefore  finds  that  there  is  no  written  contract  as  binding 
upon  the  parties.  That  there  was  no  oral  contract  made  between  the 
parties  to  warrant  the  court  in  granting  the  relief  asked  for  by  the  plain- 
tiff, viz.,  a  specific  performance,  and  the  defendant  will  prepare  a  decree 
in  the  case  dismissing  the  bill  of  complaint  filed  by  the  plaintiff  with  tax- 
able costs  to  be  awarded  to  the  defendant. 

Mr.  Lamson:  May  we  include  in  that  the  interpleader  bill  that 
was  filed  here  by  Mr.  Harris?  Mr.  Harris  has  interpleaded;  it  has  been 
tried  out  by  the  same  statement  of  facts  here. 


§143| 


SPECIFIC  PERFORMANCE  309 


The  Court:     I  don't  know  about  that.    What  about  that? 

Mr.  Lamson:  An  interpleader  bill,  where  they  allege  the  same  things, 
practically,  as  the  others,  only  they  include  the  fact  that  they  may  be 
protected  by  the  decree  of  this  court  as  to  the  specific  performance  of 
the  contract.  Their  rights  stand  or  fall  on  the  main  case,  as  I  under- 
stand it. 

The  Court:     You  mean,  Mr.  Harris  has  interpleaded  here? 

Mr.  Lamson:  Yes;  an  interpleader's  bill  on  the  part  of  Mr.  Harris, 
where  he  interpleads  and 

The  Court:     Who  is  his  attorney? 

Mr.  Robert  H.  Cook:     I  am.    Cook  &  Cook. 

The  Court:  It  may  all  be  dismissed,  all  of  them  under  the  decree  of 
the  court.    The  relief  is  denied. 

Mr.  Robert  Cook:  We  move  the  court  for  the  right  to  have  a  decree 
entered  in  favor  of  the  plaintiffs  in  this  case  along  the  line  of  Mr.  Mun- 
son's  testimony,  which  the  court  found  to  be  cornet,  viz.:  That  the 
payment  was  to  be  made  at  the  end  of  the  two  years. 

The  Court:     No,  I  don't  think  that  to  be  the  fact,  Mr.  Cook. 

Mr.  Cook:     That  was  stated  in  the  opinion,  may  it  please  the  court. 

The  Court:  No;  I  said  that  was  his  idea  of  it.  In  order  to  make  a 
contract  the  minds  of  the  parties  must  meet.  He  thought  it  was  to  be 
paid  at  the  end  of  two  years,  and  the  other  man  didn't.  Your  request  will 
be  denied. 

(h)  Decree  of  the  Court. —  (Caption.)  At  a  session  of  said  court  held 
at  the  Court  House  of  the  City  of  Saginaw  in  said  county  on  the  27th  day 
of  October,   1919. 

Present:  Hon.  Ernest  A.  Snow,  Circuit  Judge. 

This  cause  came  on  be  heard  on  the  9th  day  of  October,  1919,  upon  a 
bill  of  complaint  filed  therein  by  said  plaintiff,  and  upon  bill  of  com- 
plaint filed  therein  by  the  intervenors,  and  issue  therein  being  formed  by 
answers  of  said  defendant,  and  proofs  having  been  taken  in  open  court 
by  stipulation  of  parties;  the  said  plaintiff  and  intervenors,  being  repre- 
sented by  Cook  &  Cook,  as  their  attorneys,  and  said  defendant  by  Walter 
J.  Lamson  and  Bird  J.  Vincent,  as  his  attorneys,  and  after  listening  to 
said  proofs  and  argument  of  the  respective  attorneys,  and  upon  due  con- 
sideration thereof,  it  is  ordered,  adjudged,  and  decreed,  and  this  court,  by 
virtue  of  the  authority  therein  vested,  doth  order,  adjudge  and  decree 
as  follows: 

I.  That  the  lease  or  agreement  in  writing,  bearing  date  the  7th  day 
of  April,  1919,  marked  Exhibit  "A"  in  said  plaintiff's  bill  of  complaint, 
was  made  and  executed  by  the  parties  thereto  on  Sunday,  the  Cth  day 
of  April,  1919,  and  was  never  subsequently  ratified  or  confirmed  by  said 
defendant  on  any  secular  day,  and  is  therefore,  without  binding  effect 
upon  either  party  thereto,  is  null  and  void. 

II.  That  the  claimed  oral  contract  made  between  said  plaintiff  Lyle 
and  said  defendant  was  void  under  the  statute  of  frauds  of  this  state,  and 
that  there  was  not  such  a  part  performance  of  said  oral  agreement,  and 


310  THE  LAW  0F  LAND  CONTRACTS  [§  143 

not  such  a  meeting  of  the  minds  of  the  parties  in  the  terms  of  such  oral 
agreement  that  will  justify  a  court  of  equity  in  enforcing  the  performance 

thereof. 

III.  That  the  interest  in  the  property  mentioned  in  said  bill  of  said 
intervening  plaintiffs  is  dependent  upon  the  rights  of  the  plaintiff,  William 
Lyle,  to  obtain  the  performance  of  said  alleged  oral  contract,  and  they 
do  not  appear  to  have  any  equities  independent  thereof,  and  their 
bill  of  complaint  is  dismissed  with  cost  to  be  taxed  against  them,  accord- 
ing to  the  rules  and  practice  of  this  court. 

IV.  The  clerk  of  this  court  is  ordered  to  pay  to  said  defendant  the 
sum  of  one  hundred  fifty  ($150.00)  dollars,  paid  by  said  plaintiff,  William 
Lyle,  in  court  for  the  rent  of  said  premises  due  on  August  1st,  1919,  and 
to  take  his  receipt  therefor. 

V.  The  injunction  issued  by  this  court  against  said  defendant  restrain- 
ing him  from  selling,  assigning,  mortgaging,  or  otherwise  disposing 
of  the  land  mentioned  in  said  bill  is  hereby  dissolved,  and  the  bill  of 
complaint  of  said  plaintiff,  William  Lyle,  and  his  amendments  thereto 
are  dismissed  with  costs  to  be  taxed  against  him  according  to  the  rules 

and  practice  of  this  court. 

ERNEST  A.   SNOW, 

Dated  October  27,  1919.  Circuit  Judge. 

(i)  Authorities  Cited  by  Plaintiff.— Brief  for  the  Plaintiff. 

Even  if  the  writ  of  contract  was  actually  executed  on  Sunday,  equity 
will  refuse  to  permit  defendant  to  take  advantage  of  that  fact  because 
of  his  own  unconscionable  conduct. 

1.  To  deny  the  contract  would  be  a  fraud  upon  the  plaintiff. 

Equity  will  enforce  a  promise  where  a  fraudulent  omission  to  have 
it  reduced  to  writing  has  lead  to  an  irretrievable  change  of  position, 
citing  Lamb  v.  Hinman,  46  Mich.  112,  on  the  proposition  that  the  court 
had  confidence  in  the  testimony  of  witnesses  who  testified  to  the  exe- 
cution of  the  lease  on  Sunday,  witnesses  personally  known  to  the  court 
and  in  whom  the  court  has  confidence  with  respect  to  their  veracity, 
counsel  for  plaintiff  cites  Wigmore  on  Evidence,  Sec.  2569,  and  16  Cyc.  51, 
as  authority  that  no  personal  knowledge  or  acquaintance  with  witnesses 
the  court  may  have  gained  outside  of  the  courtroom  could,  under  the 
established  rules  of  evidence,  be  permitted  to  influence  it. 

Plaintiff  also  cites  Bushman  v.  Faltis,  184  Mich.  172,  as  to  the  validity 
of  the  option  of  purchase;  Pearson  v.  Gardner,  202  Mich.  360,  Meyer  V. 
Haddon,  148  Mich.  488,  on  part  performance. 

Under  the  principle  that  equity  will  enforce  a  promise  where  a  fraudu- 
lent omission  to  have  it  reduced  to  writing  has  led  to  an  irretrievable 
change  of  position,  counsel  cites  Pomeroy's  Eq.  Jur.,  4th  Ed.,  Sec.  2253; 
Pete  v.  Pete,  77  Cal.  106,  11  Am.  St.  Rep.  244;  Story's  Eq.  Jur.,  768;  Atherly 
on  Marriage,  85;  Green  v.  Green,  34  Kan.  740,  55  Am.  Rep.  256. 

2.  Equity  will  relieve  against  a  mistake  of  law  accompanied  by  unequita- 
ble conduct  on  the  part  of  one  knowing  and  taking  advantage  of  the  mis- 
take, citing  Pomeroy's  Eq.  Jur.,  Sec.  847;   Carpenter  v.  Detroit  Forging 


§  143  J  SPECIFIC  PERFORMANCE  311 

Co.,  191  Mich.  45  (see  cases  there  cited);  Berry  v.  Whitney,  40  Mich.  65; 
South  Carolina  v.  Gilbreth,  208  Fed.  899,  at  page  923;  Bispham's  Eq.,  par. 
185;  Faxon  v.  Baldwin,  114  N.  W.  40;  quoting  also  from  2  Warvelle  on 
Vendors,  par.  780,  as  follows: 

"But  where  there  has  been  a  mistake  on  one  side  and  fraud  upon  the 
other,  where  the  guilty  party,  though  not  mistaken  himself,  well  under- 
stood the  other  party's  error,  and  knowing  the  same  executed  the  con- 
tract intending  to  reap  advantage  from  such  error,  while  the  mistake  is 
unilateral,  yet  the  fraud  of  the  other  party  will  justify  equitable  interven- 
tion equally  as  though  such  guilty  party  had  made  affirmative  repre- 
sentations to  induce  the  error." 

In  Haviland  v.  Willetts,  141  N.  Y.  35,  35  N.  E.  958,  it  appeared  that 
plaintiff  supposed  that  one  of  the  legacies  in  his  wife's  will  went  to  the 
children  of  the  beneficiary  when  in  reality  plaintiff  was  entitled  under 
the  law  to  a  share  in  it.  Plaintiff  released  his  right  in  the  estate  for  a 
sum  much  less  than  it  was  actually  worth  to  one  who  knew  his  legal 
rights  and  although  defendant's  counsel  had  explained  the  situation  to 
plaintiff  in  techincal  language  and  where  it  did  not  appear  that  plaintiff 
understood  his  rights,  the  court  held  that  he  might  on  that  showing,  have 
the  instrument  set  aside.    The  court  said: 

"It  is  equally  well  settled  that  where  there  is  a  mistake  of  law  on  one 
side,  and  either  positive  fraud  on  the  other,  or  inequitalbe,  unfair,  and 
deceptive  conduct,  which  tends  to  confirm  the  mistake  and  cancel  the 
truth,  it  is  the  right  and  duty  of  equity  to  award  relief.  All  the  cases 
which  deny  a  remedy  for  mere  mistake  of  law  on  one  side  are  careful 
to  add  the  qualification  that  there  must  be  no  improper  conduct  on  the 
other." 

Silliman  v.  Wing,  7  Hill  159;  Flynn  v.  Hurd,  22  N.  E.  1109;  Vander- 
beck  v.  City  of  Rochester,  25  N.  E.  408. 

3.  To  permit  defendant  to  deny  the  contract  would  be  against  public 
policy. 

In  the  application  of  the  laws,  a  court  of  equity  will  not  permit  them 
to  be  made  instruments  of  fraud  and  will  refuse  to  permit  a  party  to 
take  advantage  of  them  when  because  of  his  own  inequitable  conduct 
to  do  so  would  be  clearly  against  public  policy. 

Cardwell  v.  Kelly,  95  Va.  570,  28  S.  E.  953;  Clarke  v.  Littlepage,  4th 
Rand.  (Va.)  368;  Ten  Eyck  v.  R.  R.  Co.,  114  Mich.  494. 

(j)  Brief  for  Defendant. — The  acts  of  part  performance  in  this  case 
were  clearly  insufficient. 

Beemer  v.  Hughes,  179  Mich.  110. 

1.  A  contract  made  on  Sunday  is  illegal  and  void  although  dated  on 
another  day.  International  Text  Book  v.  Ohl,  150  Mich.  132;  Acme  Elec. 
Co.  v.  VanDerbeck,  127  Mich.  345;  Harvey  v.  Petrie,  100  Mich.  192;  Ar- 
buckle  v.  Reaume,  96  Mich.  243;  Adams  v.  Hamell,  2  Doug.  73. 

2.  The  fact  that  the  vendee  entered  into  possession  and  made  improve- 
ments thereon  and  payments  on  the  purchase  price  will  not  validate  such 
a  contract.    Berston  v.  Gilbert,  180  Mich.  643. 


CHAPTER  IX 

FORFEITURE  OF  LAND  CONTRACTS 
POSSESSORY  PROCEEDINGS  BY  VENDOR 

§  144.  Remedies  Available  to  the  Vendor  Upon  Breach  of  the  Contract 

by  Vendee. — General  Consideration. 
§  145.  Michigan  Doctrine  of  Forfeiture.— Generally. 
§  146.  Forfeiture  of  Land  Contract  in  Case  of  Death  of  One  of  Contracting 

Parties. 
§  147.  First  Step  in  Effecting  Forfeiture  of  Contract. 
§  148.  Where  the  Contract  Waives  Notice  of  Forfeiture. 
§  149.  Notice  of  Forfeiture. — Forms. 
§  150.  Waiver  of  Forfeiture  On  Default  in  the  Contract. 
§  151.  Courses  Open  to  Vendor  After  Forfeiture. 
§  152.  Action  in  Ejectment  by  Vendor. 
§  153.  Vendor's  Action  in  Ejectment,  the  Declaration. 
§  154.  Ejectment,  Declaration,  Form. 
§  155.  Vendee  Estopped  to  Deny  Vendor's  Title. 

§  156.  Actions  in  Ejectment  by  Vendor  or  Vendee  Against  Third  Persons. 
§  157.  Summary  Proceedings  by  Vendor  for  Possession. 
§  158.  Form  of  Complaint  in  Summary  Proceedings. 
§  159.  The  Plea  in  Summary  Proceedings. 
§  160.  Incidents  in  Relation  to  Summary  Proceedings. 
§  161.  Service  Where  Defendant  Cannot  Be  Found. 
§  162.  Steps  On  Appeal  From  Circuit  Court  Commissioner. 
§  163.  Form  of  Affidavit  On  Appeal. 
§  164.  Bond  On  Appeal. 
§  165.  Return  On  Appeal. 

§  166.  Effect  of  Final  Judgment  in  Possessory  Proceedings. 
§  167.  Effect  of  Registration  of  Writ  of  Restitution. 
§  168.  Proceedings  to  Have  Forfeiture  Decreed. 

§  169.  Bill  of  Complaint.— Form  to  Have  Forfeiture  Legally  Established. 
§  170.  Decree. — Form  of  Declaring  Forfeiture  Effected. 

§  144.  Remedies  Available  to  the  Vendor  Upon  Breach  of 
the  Contract  by  Vendee — General  Consideration. — Land  con- 
tracts in  general  use  in  Michigan  usually  contain  a  provision 
that  upon  a  breach  of  any  of  the  terms  and  conditions  thereof 
on  the  part  of  the  vendee,  the  vendor  shall  have  the  right  to 
declare  such  contract  forfeited  and  may  repossess  himself  of 
the  premises.  Before  serving  a  notice  of  forfeiture  in  such 
cases  due  consideration  should  be  given  by  the  vendor  to  the 


§144] 


FORFEITURE   OF   LAND    CONTRACTS 


313 


fact  that  if  he  elects  to  forfeit  the  contract,  thereby  terminat- 
ing the  contractual  relation  between  himself  and  the  vendee, 
he  thereby  waives  the  right  to  foreclose  his  vendor's  lien  in 
equity  or  to  bring  an  action  at  law  for  future  installments  of 
the  purchase  price  to  become  due,  or  to  bring  an  action  for 
specific  performance  of  the  contract  against  the  vendee,  or  to 
pursue  any  other  remedy  which  relies  upon  the  existence  of  the 
contract.1 

Upon  a  breach  of  any  of  the  material  terms  or  conditions 
of  a  land  contract  the  vendor  has  the  right  to  pursue  any  one 
of  the  following  remedies  against  the  vendee : 

1.  He  may  declare  the  contract  forfeited  and  make  peaceable 
entry  into  possession  of  the  premises,  at  the  same  time  declar- 


1.  In  a  number  of  case,  the  Su- 
preme Court  has  announced  that 
the  following  courses  in  equity  are 
open  to  a  plaintiff  after  a  declara- 
tion of  forfeiture  has  been  served, 
to-wit:  First,  a  suit  in  equity  to 
foreclose  the  contract;  second,  an 
action  In  ejectment;  third,  sum- 
mary proceedings  under  the  statute. 

See  Curry  v.  Curry,  213  Mich. 
316;  Lampkins  Loan  &  Investment 
Co.  v.  Adams,  132  Mich.  350. 

But  considering  the  nature  of  the 
remedy  of  foreclosure,  it  would 
seem  that  the  action  in  foreclosure 
was  an  affirmation  of  the  existence 
of  the  contract  and  entirely  in- 
consistent with  the  declaration  of 
forfeiture. 

Pomeroy  in  his  admirable  work 
on  equity,  fourth  edition,  section 
1262,  in  speaking  of  the  action  of 
foreclosure,  "The  equity  action  to 
enforce  the  so-called  lien  is  simply 
an  action  to  compel  the  vendee  to 
make  payments  of  the  purchase 
price  within  a  specified  time,  or 
else  be  barred  of  all  rights  under 
the  contract." 

Since  the  action  of  foreclosure 
is  a  proceeding  to  collect  the  pur- 


chase price,  and  is  inconsistent 
with  the  severance  of  contractual 
relations  between  the  parties,  how 
can  the  vendor  maintain  such  ac- 
tion, after  having  severed  such  con- 
tractual relations  by  notice  termi- 
nating the  contract,  if  the  vendee 
objects? 

We  do  not  find  where  the  ques- 
tion has  been  presented,  but  there 
are  decisions  holding  that  an  action 
to  foreclose  the  contract  waives 
any  previous,  declaration  of  for- 
feiture. 

Old  Second  National  Bank  v.  Sav- 
ings Bank,  115  Mich.  553;  Mayday 
v.  Roth,  160  Mich.  190;  John  v.  Mc- 
Neil, 167  Mich.  151. 

A  careful  examination  of  the  fore- 
going cases  in  which  those  state-' 
ments  occur  that  the  vendor  may 
file  a  bill  to  foreclose  his  vendor's 
lien  after  service  of  a  declaration 
of  forfeiture,  will  disclose  that  such 
statements  are  dicta  and  were  not 
necessary  to  decide  the  case,  and 
the  principle  that  after  a  declara- 
tion of  forfeiture,  the  vendor  can- 
not collect  the  purchase  price  by 
bill  to  foreclose,  seems  unassaila- 
ble. 


314 


THE  LAW  OF  LAND  CONTRACTS 


I  §144 


ing  that  he  takes  possession  for  the  purpose  of  making  the 
forfeiture  effectual.  The  vendor,  however,  may  not  take  pos- 
session in  this  manner  unless,  permitted  so  to  do  by  the  vendee. 
A  voluntary  surrender  under  such  circumstances  of  the  prem- 
ises by  the  vendee  afterwards  estops  him  from  asserting  any 
rights  therein.2 

2.  He  may  declare  the  contract  forfeited,  and  begin  proceed- 
ings for  possession  either  by  an  action  in  ejectment  or  by 
summary  proceedings  before  a  circuit  court  commissioner. 
Either  one  of  such  possessory  actions  is  consistent  with  the 
forfeiture  of  the  contract.3 

3.  He  may  bring  an  action  of  law  for  whatever  installments 
of  the  purchase  price  have  become  due  and  are  unpaid.4 

4.  He  may  foreclose  the  vendor's  lien  by  an  action  in  chan- 
cery, in  which  event  he  waives  the  right  to  declare  such  con- 
tract forfeited.  He  may  pursue  both  his  action  at  law  for  the 
installments  of  the  purchase  price  and  resort  to  a  foreclosure 
of  his  vendor's  lien  at  the  same  time.5 

5.  He  may  sue  the  vendee  for  damages  for  non-performance 
of  the  contract.6 

6.  He  may  bring  an  action  for  specific  performance  of  the 
contract  against  the  vendee,  even  though  the  vendee's  under- 
taking is  only  for  the  payment  of  money.7 

7.  In  many  cases  courts  of  equity  will  relieve  the  defendant 
from  the  forfeiture  of  the  contract  where  such  forfeiture  has 
been  declared  by  the  vendor.8 

For  a  full  discussion  of  the  foregoing  remedies  available  to 
the  vendor,  and  defensive  measures  which  the  vendee  may 


2.  See  Sec.  144,  Post;  Gates  Real 
Property,  Sec.  613;  Pendill  v.  Union 
Mining  Co.,  64  Mich.  172;  Laetz  v. 
Tierney,  153  Mich.  279  (281-282); 
Alexander  v.  Hodges,  41  Mich.  691 
(694). 

3.  See  Sections  on  Summary  Pro- 
ceedings, Sec.  157-161  Post,  and  the 


Vendor's 
Post. 


Remedy     of     Ejectment, 


4.  Carter  v.    Reaume,    159    Mich. 
160;    Higney    v.    Swan,    111    Mich. 


161;  Allen  v.  Mohn,  86  Mich.  3281; 
Gates  Real  Property,  Sec.  617. 

5.  See  Vendor's  Remedy  of  Fore- 
closure, Chapter  XI  Post;  Gates 
Real  Property,  Sec.  617;  Pearson 
v.  Gardner,  202  Mich.  360. 

6.  Carter  v.  Reaume,  159  Mich. 
160. 

7.  See  Chapter  on  Specific  Per- 
formance, Ante  (Chaps.  7  and  8). 

8.  See  Sec.  171-172,  Post,  Relief 
from  Forfeiture. 


§145] 


FORFEITURE   OF   LAND    CONTRACTS 


315 


take  to  protect  his  interests,  reference  should  be  had  to  the 
various  chapters  and  sections  of  this  treatise  cited  in  the  notes 
below.9 

§  145.  Michigan  Doctrine  of  Forfeiture — Generally. — Legally 
denned,  a  forfeiture  is  a  loss  suffered  by  way  of  penalty  for 
some  misconduct  or  negligence.  The  term,  as  used  here,  de- 
notes the  divesture  of  property  without  compensation  to  the 
owner  in  consequence  of  some  default  or  act  forbidden  in  the 
contract.10 

Forfeitures  and  penalties  are  regarded  with  disfavor  by 
courts  everywhere,  but  the  Supreme  Court  of  Michigan  has 
especially  emphasized  this  disfavor  from  its  earliest  decisions 
down  to  the  present  time.  The  attitude  of  the  Michigan 
Supreme  Court  towards  penalties  and  forfeitures  has  been 
succinctly  stated  by  Judge  Christiancy  in  the  early  and  leading 
case  of  Jaquith  v.  Hudson  (5  Mich.  126).  In  construing  the 
provisions  of  a  contract  to  determine  whether  or  not  a  provi- 
sion requiring  the  payment  of  a  given  sum  upon  default  in 
the  contract  was  liquidated  damages  or  a  penalty,  Judge  Chris- 
tiancy said,  "It  is  the  application  in  a  court  of  law,  of  that 
principle  long  recognized  in  courts  of  equity,  which,  disregard- 
ing the  penalty  of  the  bond,  gives  only  the  damages  actually 
sustained.  This  principle  may  be  stated,  in  other  words,  to 
be  that  the  courts  of  justice  will  not  recognize  or  enforce  a  con- 
tract or  any  stipulation  of  a  contract,  clearly  unjust  and  uncon- 
scionable; a  principle  of  common  sense  and  common  honesty 
so  obviously  in  accordance  with  the  dictates  of  justice  and 
sound  policy,  as  to  make  it  rather  matter  of  surprise  that 
courts  of  law  had  not  always,  and  in  all  cases  adopted  it  to 
the  same  extent  as  courts  of  equity."    As  to  when  the  courts 


9.  See  Specific  Performance  of 
Land  Contracts  (Chapters  7  and  S) ; 
Action  in  Ejectment  by  Vendor, 
Sec.  152  Post;  Summary  Proceed- 
ings by  Vendor  for  Possession,  Sec. 
157;  Relief  from  Forfeiture,  Sec. 
171  Post. 

10.  Dailey,  et  al.  v.  Litchfield,  et 
al.,  10  Mich.  38;  Davis  v.  Freeman, 


10  Mich.  191;  Richmond  v.  Robin- 
son, 12  Mich.  201;  Jaquith  v.  Hud- 
son, 5  Mich.  123;  Myer  v.  Hart,  40 
Mich.  523;  Lamson  v.  City  of  Mar- 
shall, 133  Mich.  263;  Tp.  of  Spring- 
wells  v.  Detroit,  Etc..  Ry.,  140  Mich. 
279;  Powell  v.  Dwyer,  140  Mich 
146;  Rose  v.  Loescher,  152  Mich. 
385;  Miner  v.  Husted,  191  Mich 
41;  Decker  v.  Pierce,  191  Mich.  71 


316  THE  LAW  OF  LAND  CONTRACTS  [§  145 

will  apply  this  principle,  Judge  Christiancy  further  says,  "But 
the  court  will  apply  this  principle,  and  disregard  the  express 
stipulation  of  parties,  only  in  those  cases  where  it  is  obvious 
from  the  contract  before  them,  and  the  whole  subject  matter, 
that  the  principle  of  compensation  has  been  disregarded,  and 
that  to  carry  out  the  express  stipulation  of  the  parties  would 
violate  this  principle,  which  alone  the  court  recognizes  as  the 
law  of  the  contract."  In  conformity  with  the  doctrine  ex- 
pressed in  Jaquith  v.  Hudson,  the  courts  of  Michigan  have 
in  a  great  variety  of  cases  refused  to  allow  the  damages  stipu- 
lated in  the  contract,  and  held  the  parties  to  actual  damages.11 

Thus,  in  harmony  with  this  principle,  the  courts  have  re- 
fused to  enforce  the  provisions  of  promissory  notes  providing 
for  attorney  fees,  and  have  held  as  unconstitutional  the  statute 
expressly  authorizing  the  collection  of  such  attorney  fees, 
holding  that  it  was  against  the  well-settled  policy  of  Michigan 
to  enforce  penalties  of  that  character.18 

For  the  same  reason,  provisions  in  mortgages  for  attorney 
fees  in  excess  of  the  statutory  rates,  have  been  held  invalid 
and  against  the  public  policy.13 

As  a  further  example  of  this  principle,  where  a  piano  was 
sold  on  a  conditional  contract  of  sale  and  was  afterwards  taken 

11.  19    Cyc.    1357;     Maryland    v.  sation.     Bullock  v.  Taylor,  39  Mich. 

Baltimore  &  Ohio  R.  R.  Co.,  44  U.  137;   Trustee  v.  Walrath,  27  Mich. 

S.    (3    How.)    534,   11    L.    Ed.    714;  232;   Jaquith  v.  Hudson,  5  Mich.  123 ; 

Words   and   Phrases,  Page   611.  Davis   v.    Freeman,    10    Mich.    188: 

Myer  v.  Hart,  40  Mich.  523 ;  Louder 

In  the  following  cases  the  court  v     Burcn>    47    Mich.    111;    Millard 

disregarded  the  express  agreement  v    Truax,  47  Mich.  252;   Wright  v 

of  the  parties  and  held  them  to  only  Traver)    73    Mich.    495;'   Crump    v. 

actual  damages:  Trustee  of  Church  Berdan>  97  Mich.  295;  Kittermaster, 

v.  Walrath,  27  Mich.  234;   Meyer  v.  Executor>  Etc.,  v.  Hubert  Brossard 

Hart,  40  Mich.  523;  Daily  v.  Litch-  and  Annie  Brossard>  105  Mich.  220; 

field,  10  Mich.  188;  Condon  v.  Kern-  Qreen  v    Grant>  134  Mich    466 


per,    13    L.    R.    A.    671;     Ross    v. 
Leecher,   152   Mich.   589. 


13.  Where  a  trust  deed  stipulated 
that  upon  foreclosure  a  solicitor 
12.  A  provision  in  a  promissory  should  have  a  fee  of  $100.00,  such 
note  providing  for  the  payment  of  a  provision  was  held  to  be  con- 
an  attorney  fee  is  void  because  as  trary  to  public  policy  and  there- 
a  measure  of  damages  it  disregards  fore,  unenforceable.  Curtis  v.  Mil- 
any  theory  or  principle  of  compen-      ler,  184  Mich.  151. 


§146] 


FORFEITURE   OF   LAND   CONTRACTS 


317 


back  by  the  vendor,  the  court  required  him  to  account  to  the 
vendee  for  the  money  paid  under  such  contract.14 

While  these  decisions  do  not  relate  to  land  contracts,  the 
principles  announced  in  such  decisions  should  be  kept  in  mind 
by  the  members  of  the  profession  in  examining  propositions 
of  law  relating  to  the  enforcement  of  forfeitures  in  contracts 
for  the  sale  of  real  estate. 

§  146.  Forfeiture  of  Land  Contract  in  Case  of  Death  of  One 
of  Contracting  Parties. — It  is  provided  by  recent  statute  that 
where  a  person  shall  have  contracted  to  convey  real  estate, 
and  shall  have  died  subsequent  to  the  execution  of  such  con- 
tract, leaving  such  contract  subsisting  and  in  force,  the 
executor  or  trustee  under  the  will,  administrator  of  such  dece- 
dent's estate,  or  the  guardian  of  a  minor,  if  such  minor  be  the 
owner  of  the  interest,  may  demand  and  enforce  payment  of 
the  moneys  part  due  or  falling  due  on  such  contract  and  in 
case  a  cause  of  forfeiture  of  such  contract  shall  have  accrued 
or  shall  accrue  after  such  death,  may  declare  such  contract 
forfeited.  The  statute  also  applies  to  the  guardian  of  persons 
who  have  been  adjudged  insane,  incompetent  or  spendthrift. 

The  statute  farther  provides  that  when  any  such  contract 
shall  have  been  forfeited,  as  aforesaid,  of  such  lands  and  rights 
and  claims  in  and  to  such  lands,  shall  to  all  intents  and  pur- 


14.  In  the  case  of  Preston  v. 
Whitney,  23  Mich.  259.  In  requir- 
ing the  vendor  of  a  piano  contract 
to  account  to  the  vendee  for  a  pay- 
ment made  on  account  of  a  piano 
contract  the  court  held: 

"The  defendant  having  received 
$100  of  plaintiff's  money  paid  only 
in  consideration  of  the  proposed 
purchase  and  having  taken  the 
property  back  which  constitutes  the 
consideration  and  having  termi- 
nated the  contract  upon  which  it 
was  paid  has  so  much  money  In 
his  hands  for  which  he  should  ac- 
count to  the  plaintiff  upon  just  and 
equitable  principles,  he  doubtless 
would  have  the  right  to  deduct  from 


the  amount  a  fair  compensation  for 
the  use  of  the  piano  during  the  pe- 
riod of  time  it  remained  with  the 
plaintiff.  But  he  would  have  no 
right  to,  under  the  terms  of  this 
agreement  to  claim  a  forfeiture  of 
all  the  money  paid  beyond  reason- 
able compensation."     Pp.   266,  268, 

In  the  case  of  Davis  v.  Trow- 
bridge, 44  Mich.  159,  the  court  fol- 
lowed the  foregoing  decisions  hold- 
ing that  where  the  plaintiff  put  an 
end  to  the  contract  there  was  a 
failure  of  consideration  as  to  the 
payments  defendant  had  already 
made  and  that  the  plaintiff  became 
liable  to  pay  back  what  the  defend- 
ant had  paid. 


318 


THE  LAW  OF  LAND  CONTRACTS 


[§146 


poses  be  thenceforth  deemed  to  be  held  and  shall  be  treated  in 
the  same  manner  as  land  purchased  at  mortgage  sales  by 
executors  or  adminitsrators  under  and  in  pursuance  of  Section 
13856  of  the  Compiled  Laws  of  1915.16 


15.  In  case  a  person  shall  have 
contracted,  or  shall  contract  to  con- 
vey any  land,  or  right,  interest,  or 
claim  in  or  to  lands,  and  shall  have 
died,  or  shall  die,  before  he  shall 
have  executed,  or  shall  execute, 
deeds  or  conveyances  in  pursuance 
of  such  contract,  leaving  such  con- 
tract subsisting  and  in  force;  or 
if  such  contract  shall  have  been 
assigned,  or  shall  be  assigned,  then 
if  the  assignee  of  such  contract, 
entitled  to  the  benefit  thereof,  and 
grantee  of  such  contracted  premises 
subject  to  the  contract,  shall  have 
died,  or  shall  die,  or  if  such  per- 
son or  the  assignee  of  such  con- 
tract shall  have  been  adjudged,  or 
shall  be  adjudged,  insane,  incom- 
petent, or  a  spendthrift,  before 
deeds  or  conveyances  shall  have 
been  executed  of  the  contracted 
premises  in  pursuance  of  such  con- 
tract, leaving  such  contract  sub- 
sisting and  in  force,  or  if  the  owner 
of  such  vendor's  interest  is  a  minor, 
the  executor  of  the  will,  or  trustee 
under  the  will,  or  administrator  of 
the  estate  of  such  deceased  person, 
or  guardian  of  such  ward,  whether 
the  party  contracting  or  his  as- 
signee, may  demand  and  enforce 
payment  of  the  moneys  part  due 
or  falling  due  on  such  contract,  and 
in  case  a  cause  of  forfeiture  of  such 
contract  shall  have  accrued,  or 
should  accrue,  and  not  waived,  may 
declare  such  contract  forfeited. 

"That  when  the  contract  for  any 
lands,  or  any  right,  interest  or 
claim  in  or  to  lands  heretofore  con- 
tracted to  be  sold,  shall  have  been 


forfeited,  and  shall  have  been  duly 
declared  to  have  been  forfeited,  as 
aforesaid,  all  such  lands  and  rights, 
interests  and  claims  in  or  to  lands, 
shall,  to  all  intents  and  purposes, 
be  thenceforth  deemed  to  be  held, 
and  shall  be  treated  in  the  same 
manner,  as  lands  purchased  at 
mortgage  sales  by  executors  or  ad- 
ministrators under  and  in  pursu- 
ance of  section  thirteen  thousand 
eight  hundred  fifty-six  of  the  Com- 
piled Laws  of  nineteen  hundred 
fifteen.     Approved    May   13,    1919." 

The  referred  sections  of  the  Com- 
piled Laws  of  1915,  provide  as  fol- 
lows: 

"When  any  mortgagee  of  real  es- 
tate, or  any  assignee  of  such  mort- 
gage, shall  die  without  having  fore- 
closed the  right  of  redemption,  all 
the  interest  in  the  mortgaged  prem- 
ises conveyed  by  such  mortgage, 
and  the  debt  secured  thereby,  shall 
be  considered  as  personal  assets 
in  the  hands  of  the  executor  or 
administrator;  and  he  may  fore- 
close the  same,  and  have  any  other 
remedy  for  the  collection  of  such 
debt  which  the  deceased  would 
have  had  if  living,  or  may  continue 
any  proceeding  commenced  by  the 
deceased  for  that  purpose. 

In  case  of  the  redemption  of  any 
such  mortgage,  or  the  sale  of  the 
mortgaged  premises  by  virtue  of 
a  power  of  sale  contained  herein 
or  otherwise,  the  money  paid  there- 
on shall  be  received  by  the  exe- 
cutor or  administrator,  and  he  shall 
thereupon  give  all  necessary  re- 
leases  and   receipts;    and  if,   upon 


§  147] 


FORFEITURE   OF   LAND    CONTRACTS 


319 


§  147.  First  Step  in  Effecting  Forfeiture  of  Contract.— The 
first  step,  unless  the  contract  waives  notice  of  forfeiture,  in 
effecting  a  forfeiture  of  a  land  contract  for  a  material  breach 
thereof  is  a  service  upon  the  vendee  of  a  notice  that  the  vendor 
elects  to  declare  the  contract  forfeited  and  terminated.10 

Mere  default  in  the  condition  of  a  land  contract  by  the  vendee 
will  not,  of  itself,  terminate  the  land  contract.  The  forfeiture 
clause  in  such  contract  usually  provides  that  upon  default  by 
the  vendee  in  the  terms  of  such  contract  the  vendor  shall  have 
the  right  to  declare  the  contract  forfeited,  and  a  breach  of  the 
contract  or  default  in  its  terms,  no  matter  how  long  continued, 
will  not,  of  itself,  work  a  forfeiture,  unless  the  contract  so 
provides.17 


a  sale  of  the  mortgaged  premises, 
the  same  shall  be  bid  in  by  the 
executor  or  administrator  for  such 
debt  he  shall  be  seized  of  the  same. 
for  the  same  persons,  whether 
creditors,  next  of  kin  or  others, 
who  would  have  been  entitled  to 
the  money,  if  the  premises  had 
been  redeemed  or  purchased  at 
such    sale   by    some   other    person. 

Any  real  estate  which  may  have 
been  purchased  or  which  may  here- 
after be  purchased  by  an  executor 
or  an  administrator  as  such,  upon 
a  sale  on  execution  for  the  recov- 
ery of  a  debt  due  to  the  estate  or 
upon  a  sale  in  the  foreclosure  of 
a  mortgage  held  by  said  executor 
or  administrator  (whether  owned 
by  the  deceased  in  his  lifetime  or 
acquired  after  his  death),  shall  be 
considered  as  personal  estate  and 
may  be  sold  and  conveyed  by  said 
executor  or  administrator  in  like 
manner  as  personal  estate  may  now 
be  sold,  and  the  proceeds  thereof 
shall  be  held  and  divided  as  per- 
sonal estate:  Provided,  Such  sale 
shall  first  be  approved  by  the  judge 
of  probate  having  jurisidction  of 
such  estate  by  an  order  entered  in 


the  journal  of  the  court,  a  copy  of 
which  order  shall  be  attached  to 
and  recorded  with  the  deed  given 
by  such  executor  or  administrator. 
If  any  land  so  held  by  an  execu- 
tor or  administrator  as  mentioned 
in  the  preceding  section,  shall  not 
be  sold  by  him  as  therein  provided, 
it  shall  be  assigned  and  distributed 
to  the  same  persons,  and  in  the 
same  proportions,  as  if  it  had  been 
part  of  the  personal  estate  of  the 
deceased;  and  if,  upon  such  dis- 
tribution, the  estate  shall  come  to 
two  or  more  persons,  partition 
thereof  may  be  made  between  them, 
in  like  manner  as  if  it  were  real 
estate  which  the  deceased  held  in 
his  lifetime." 

16.  John  v.  McNeal,  167  Mich. 
148;  Nelson  v.  Smith,  161  Mich.  363: 
Corning  v.  Loomis,  111  Mich.  23; 
Miner  v.  Dickey,  140  Mich.  518. 

17.  Converse  v.  Blumrich,  14 
Mich.,  109  (90  Am.  Dec.  230);  Mi- 
ner v.  Dickey,  140  Mich.  518  (103 
N.  W.  855) ;  Murphy  v.  Mclntyre, 
152  Mich.  591  (116  N.  W.  197) ;  Nel- 
son v.  Smith,  161  Mich.  363  (126  N. 
W.  447) ;  Mich.  Land  &  Iron  Co. 
v.  Thoney,  89  Mich.  226. 


320  THE  LAW  0P  LAND  CONTRACTS  [§  147 

The  notice  from  the  vendor  to  the  vendee  declaring  the 
contract  forfeited,  and  terminated  may  either  be  given  orally 
or  in  writing,  the  better  practice  being,  of  course,  to  serve  this 
notice  in  writing,  and  retaining  a  copy  in  order  to  make  proof 
of  service.18 

The  notice  of  forfeiture  should  be  given  even  though  the 
vendor  makes  a  peaceable  re-entry  into  the  possession  of  the 
property.  Unless  the  vendor  shall  give  to  the  vendee  notice 
declaring  the  contract  forfeited  and  terminated,  the  vendor 
cannot  maintain  either  ejectment  proceedings  or  summary  pro- 
ceedings for  possession  of  the  property.19 

Merely  taking  possession  of  the  premises  by  the  vendor  with- 
out declaring  the  contract  forfeited  does  not  terminate  the 
contractual  relations  of  the  parties.20 

§  148.  Where  the  Contract  Waives  Notice  of  Forfeiture. — 

Where  the  contract  contains  a  provision  waiving  notice  of  for- 
feiture, no  notice  is  necessary  before  beginning  proceedings  to 
obtain  possession,  and  the  vendor  may  upon  default  in  the  con- 
tract have  open  to  him  all  remedies  and  proceedings  which 
would  have  been  available  to  him  in  event  notice  were  given.21 

§  149.  Notice  of  Forfeiture — Forms. — The  notice  of  forfei- 
ture should  describe  the  contract  briefly,  giving  the  date,  name 
of  the  parties,  the  description  of  the  real  estate,  and  should 
specify  the  particular  default  in  the  contract  for  which  the 
forfeiture  is  declared.  The  notice  should  unequivocally  state 
that  the  vendor  elects  to  declare  the  contract  forfeited,  and 
that  he  terminates  by  such  notice  all  contractual  relations 
with  the  vendee.  The  following  is  a  form  in  general  use 
among  the  profession: 

Mich., 19 

To  (here  name  of  vendee) : 

You  are  hereby  notified  that  a  certain  land  contract  bearing 

date  the day  of ,  19 ,  by  and  between 

(John  Jones),  party  of  the  first  part,  and   (William  Smith), 
party  of  the  second  part,  is  in  default  by  reason  of  the  non- 
18.  See  cases  cited  above  in  notes  20.  See  cases  cited  in  notes  16  and 
17,  supra.                                                      17  supra. 

19.     See  cases  cited  in  notes  16  21.  Wellington  v.  Strickland,  161 

and  17  supra.  Mich.  235. 


§  149]  FORFEITURE    OF   LAND   CONTRACTS  321 

payment  of  the  installments  of  principal  and  interest  due 
thereunder,  and  you  are  hereby  further  notified  that  said 
(John  Jones),  elects  to  declare  and  does  hereby  declare  said 
land  contract  forfeited,  and  you  are  hereby  further  notified  to 
yield,  surrender  and  deliver  up  possession  of  the  premises  in 
said  land  contract  mentioned  and  of  which  you  are  now  in 
possession  under  and  by  virtue  of  the  terms  thereof.  Said 
premises  are  described  in  said  land  contract  as  follows,  viz.: 
(here  give  description  of  property). 

(Signature) 

(Proof  of  Service.) 

STATE  OF  MICHIGAN,  , 

COUNTY  OF fSS' 

being  first  duly  sworn  says 

that  on  the day  of ,  19 ,  he  served  a 

notice  of  which  the  above  is  a  true  copy,  on ,  by 


Subscribed  and  sworn  to  before  me  this day  of 

,  19 


Notary  Public, Co.,  Mich. 

My  commission  expires 

The  following  more  amplified  form  was  used  in  a  case  which 
came  before  the  Michigan  Supreme  Court.22 

"Please  to  take  notice  that  by  reason  of  the  failure  on  your 
part  to  perform  the  covenants  and  agreements  by  you  to  be 
performed  under  the  provisions  of  a  certain  agreement  in 

writing  entered  into  the day  of ,  A.  D. 

,  by  and  between  the  undersigned,  as  party  of  the  first 

part,  and  (here  name  of  other  party),  party  of  the  second 
part  wherein  the  undersigned  did  agree  to  convey  to  the  above 
mentioned  (name  of  party),  the  following  described  real  estate, 
viz. :  (here  describe  the  real  estate)  in  that  you  have  utterly 
failed,  neglected,  and  refused  to  pay  to  the  undersigned  any 
part  of  the  purchase  price  of  said  described  land  as  provided 
in  said  agreement  and  have  utterly  failed,  neglected,  and  re- 
fused to  pay  to  the  undersigned  any  of  the  interest  upon  said 
purchase  price,  the  undersigned  has  elected  to  consider  him- 

22.  Cornell  v.  Norton,  188  Mich.  191. 


322  THE  LAW  0F  LAND  CONTRACTS  [§  149 

self  released  and  discharged  of  and  from  any  and  all  liability 
on  any  of  the  covenants  specified  to  be  done  and  performed  on 
his  part,  and  the  undersigned  does  hereby  elect  to  consider 
himself  so  released  and  discharged,  and  the  undersigned  does 
hereby  declare  the  said  agreement  and  all  of  your  rights  there- 
under forfeited  by  you  for  the  reasons  above  set  forth  and 
for  the  reason  that  you  have  failed  and  refused  to  fulfill  and 
perform  the  agreements  which  by  the  terms  of  said  agreement 
were  to  be  fulfilled  and  performed  by  you. 

"And  you  will  also  please  take  notice  that  you  are  hereby 
required  to  quit,  surrender,  and  deliver  up  possession  to  me 
of  the  premises  hereinbefore  described,  which  you  now  hold 

of  me  as  my  tenant,  on  or  before  the day  of , 

A.  D ,  for  the  reason  that  I  intend  to  terminate  your 

tenancy  and  repossess  myself  of  such  premises  on  the  date 
above  mentioned. 

"Dated  this day  of ,  A.  D :..." 

(Signature) 

§  150.  Waiver  of  Forfeiture  on  Default  in  the  Contract.— If 

the  vendor,  even  after  declaring  a  forfeiture  of  the  contract, 
pursues  a  course  of  conduct  inconsistent  with  a  severance  of 
contractual  relations  with  the  vendee,  he  thereby  waives  such 
forfeiture  or  the  right  to  declare  one,  thus  dealing  with  the 
vendee  as  though  the  contract  existed,  by  demanding  payment 
after  repeated  default  on  the  part  of  the  vendee,  or  by  a  con- 
ditional demand  for  the  property  as  by  notifying  the  vendee 
he  must  pay  up  or  get  out,  thereby  giving  him  the  right  to 
either  pay  up  or  surrender  the  premises,  or  by  acceptance  of 
one  or  more  payments  due  on  the  contract,  or  by  starting  a 
suit  to  foreclose  the  vendor's  lien,  any  of  these  acts  affirm  the 
existence  of  the  contract  and  waives  and  default  previously 
made  by  the  vendee,  and  even  waives  any  previous  declaration 
of  forfeiture.23 

23.  "In  relation  to  these,  we  may  the  time  the  deed  was  tendered, 
say  that  the  evidence  convinces  Thereupon  Mitchell  served  notice 
us  that  the  complainants  did  re-  with  a  view  to  terminating  the  con- 
fuse to  perform  the  contract  ac-  tract.  Whether,  under  the  terms 
cording  to  its  strict  letter,  and  de-  of  the  contract,  this  notice  was  a 
faulted  in  payment  when  they  de-  sufficient  one  to  support  proceed- 
clined   to   pay  the   amount   due   at  ings  at  law  to  enforce  a  forfeiture, 


§150 


FORFEITURE   OF   LAND    CONTRACTS 


323 


Where  the  vendor  had  neglected  to  furnish  an  abstract  as 
he  agreed,  at  the  date  named  for  closing  the  transaction,  and 
both  parties  continued  thereafter  to  negotiate  without  claiming 
a  forfeiture,  they  may,  by  such  conduct,  thereby  waive  the 
failure  to  close  such  transaction  on  the  appointed  day.24 

The  parties  may  by  oral  agreement  extend  the  time  for  pay- 
ment as  provided  in  the  contract,  and  if  this  is  done,  the 
vendor  thereby  waives  the  right  to  declare  the  contract  for- 
feited or  rescinded  if  payments  are  made  in  accordance  with 
such  oral  agreement.26 

After  a  vendor  has  elected  to  forfeit  a  contract  he  cannot 
thereafter  maintain  an  action  for  the  purchase  price.26  Having 
elected  to  terminate  the  contractual  relations  between  himself 
and  the  vendee,  he  thereby  waives  any  action  which  is  predi- 
cated upon  existence  of  the  contract.27 


we  need  not  inquire,  as  no  such 
proceedings  were  taken  by  Mitchell. 
On  the  contrary,  he  chose  to  treat 
the  contract  as  continuing,  and  be- 
gan proceedings  with  a  view  to 
enforcing  its  provisions,  by  collect- 
ing the  contract  price,  through  fore- 
closure of  the  vendor's  lien.  We 
must,  therefore,  conclude  that  any 
meditated  forfeiture  was  waived, 
the  effect  of  the  notice  was  nulli- 
fied and  the  status  of  complain- 
ants thenceforth  was  that  of  ven- 
dees in  default."  Old  Second  Na- 
tional Bank  v.  Savings  Bank,  115 
Mich.  553;  Maday  v.  Roth,  160  Mich. 
290;  John  v.  McNeal,  167  Mich.  151. 

24.  Frazer    v.    Hovey,    195    Mich. 
160. 

25.  Bugajski  v.  Siwka,  200  Mich. 
415. 

26.  Maday  v.  Roth,  supra. 

27.  Goodspeed  v.  Dean,  12  Mich. 
352.     Where   a   vendee   having   on 

•default  by  the  vendee,  elected  to 
treat  as  void  a  contract  which  he 
had  given  for  the  sale  of  lands 
and  having  given  the  vendee  notice 
to  quit,  must  be  regarded  as  hav- 


ing relinquished  his  right  to  the 
amount  then  due  on  the  contract. 
He  cannot  treat  the  contract  as 
void  in  respect  to  the  rights  which 
it  secured  to  the  vendee,  and  valid 
in  respect  to  those  which  it  se- 
cured to  himself. 

One  who  with  knowledge  of  facts 
which,  would  enable  him  to  re- 
scind a  contract  accepts  benefits 
under  it  is  estopped  from  there- 
after assailing  its  validity.  15  N. 
D.   239-107  N.  W.   45. 

A  vendor  who  has  once  waived  a 
forfeiture  incurred  or  declared  can 
not  again  insist  on  such  forfeiture 
except  in  case  of  a  subsequent  de- 
fault, not  within  the  perview  of  the 
waiver.  Moffett  v.  Oregon  &  C. 
R.  Co.,  80  Pac.  489,  46  Or.  443. 

See  also,  Walsh  v.  Ford,  277  Ex. 
Civil  App.  573,  66  S.  W.  854. 

Where  vendee  told  a  vendor  that 
as  to  an  overdue  payment  he  would 
try  to  raise  it  in  a  few  days  and 
vendor  said  nothing,  held  a  waiver 
of  the  default  in  meeting  payments 
promptly.  Cue  v.  Johnson,  S5  Pac. 
598-73,  Kan.  558. 


324 


THE  LAW  OF  LAND  CONTRACTS 


[§151 


§  151.  Courses  Open  to  Vendor  After  Forfeiture. — Upon  the 
execution  and  service  of  a  notice  of  forfeiture  upon  the  vendee, 
the  following  courses  are  open  to  the  vendor: 

1.  He  may  demand  and  receive  from  the  vendee  a  voluntary 
surrender  of  possession  of  the  premises,  in  which  event  obvi- 
ously no  legal  steps  would  be  necessary  to  obtain  such  posses- 
sion.28 

2.  He  may  bring  an  action  in  ejectment  for  possession  of 
the  premises.29 

3.  He  may  resort  to  summary  proceedings  before  a  circuit 
court  commissioner  to  obtain  possession  of  the  premises.  As 
each  one  of  the  above  named  proceedings  has  its  advantages 
and  disadvantages,  careful  consideration  should  be  given  to 
form  of  possessory  action  which  the  vendor  selects.30 

The  vendor  in  a  land  contract  by  filing  a  bill  in  equity  to 
foreclose  his  vendor's  lien  waives  the  benefit  of  a  prior  notice 


For  collection  of  cases  on  above 
subject  see  Decennial  Digest,  Sec. 
95,  under  Vendor  and  Purchaser. 

28.  Laetz  v.  Tierney,  153  Mich. 
279  (281-282).  Right  sustained 
where  the  landlord  entered  peace- 
ably and  afterwards  retained  pos- 
session by  force. 

Detroit  Building  &  Loan  Assn., 
115  Mich.  340  (346-251).  Where  the 
vendor  entered  peacefully  and  aft- 
erwards expelled  the  vendee  by 
force. 

Kennedy  v.  Ford,  183  Mich.  48. 
The  authorities  are  collected  in  this 
case. 

29.  Ejectment  is  the  remedy  to 
recover  possession  of  real  estate 
where  the  plaintiff  has  a  valid  and 
subsisting  interest  in  the  premises. 
Lambton  v.  Investment  Co.,  132 
Mich.  353;  Covert  v.  Morrison,  49 
Mich.  133;  Bertram  v.  Cook,  44 
Mich.   396;    Wilkinson  v.  Williams, 


51  Mich.  156;  Comp.  Laws  (1915) 
Sec.  13169:  The  action  of  eject- 
ment may  also  be  brought:  1.  In 
the  same  cases  in  which  a  writ  of 
right  might  formerly  be  brought  to 
recover  lands,  tenements,  or  here- 
ditaments, and  by  any  person  claim- 
ing an  estate  therein,  in  fee,  or  for 
life,  either  as  heir,  devisee,  or  pur- 
chaser. Comp.  Laws  (1915)  Sec. 
13170. 

Sec.  3.  No  person  can  recover 
in  ejectment  unless  he  has  at  the 
time  of  commencing  the  action  a 
valid,  subsisting  interest  in  the 
premises  claimed,  and  a  right  to 
recover  the  possession  thereof,  or 
some  share,  interest  or  portion 
thereof,  to  be  proved  and  estab- 
lished at  the  trial. 

30.  Compiled    Laws    (1915)    Sec- 
13240-13257.  Providing  various  steps 
to  be  taken  by  summary  proceed- 
ings to  recover  possession  of  real 
estate. 


§152j 


FORFEITURE   OF   LAND   CONTRACTS 


325 


of  forfeiture  for  default  in  payment,  and  will  not  thereafter 
be  permitted  to  rely  upon  a  forfeiture  of  said  contract.31 

5.  In  selecting  the  remedy  of  summary  proceedings  due  con- 
sideration should  be  given  to  the  fact  that  it  is  provided  by 
statute  that  where  such  proceedings  are  brought  for  the  re- 
covery of  real  estate  by  reason  of  failure  to  pay  any  install 
ment  which  may  become  due  on  a  land  contract,  the  vendee 
shall  have  the  right  to  pay  the  arrears  on  such  contract  and 
have  the  same  reinstated  within  thirty  days  after  a  judgment 
for  the  restitution  of  the  premises  has  been  entered.  There- 
fore, if  the  vendor  desires  to  obtain  possession  of  the  premises 
and  not  to  enforce  payment,  the  remedy  in  ejectment  may  be 
more  suitable  to  his  requirements.32 

In  selecting  the  action  of  ejectment  by  vendor  to  obtain  pos- 
session it  should  be  borne  in  mind  that  the  vendee  can  not  in 
such  action  assert  any  equitable  defenses,  such  as  relief  from 
forfeiture,  as  the  action  in  ejectment  is  strictly  a  legal  action 
and  admits  of  no  defenses  of  that  character.33 

§  152.  Action  in  Ejectment  by  Vendor. — Proceedings  in 
ejectment  in  the  State  of  Michigan  are  wholly  statutory,34  and 


31.  Lambton  Investment  Co.  v. 
Adams,  132  Mich.  350.  Old  Sec- 
ond National  Bank  v.  Sav.  Bk.,  115. 
548;  Curry  v.  Curry,  213  N.  W.  309. 

Where  a  vendor  filed  a  bill  in 
equity  to  foreclose  a  vendor's  lien 
for  the  contract  price,  the  Supreme 
Court  held  that  the  effect  of  the 
notice  of  forfeiture  was  nullified  by 
the  institution  of  such  proceedings. 

32.  Cummings  &  Beechers  sup- 
plement section  1375,  Public  Acts 
1917,  No.  243,  provides  that  no  writ 
of  restitution  will  issue  in  summary 
proceedings  upon  any  executory 
contract  for  the  purchase  of  real 
estate  for  a  period  of  thirty  days 
after  judgment,  and  then  not  at 
all  if  the  defendant  shall  pay  the 
amount  found  due  on  the  contract 
together  with  the  costs  to  the  plain 
tiff. 


33.  Ejectment  involves  the  legal 
title  only  and  not  equitable  inter- 
ests or  claims.  Ryder  v.  Flanders, 
30  Mich.  336;  Whiting  v.  Butler, 
29  Mich.  122;  Conrad  v.  Long,  33 
Mich.,  78;  Jeffrey  v.  Hursh,  42 
Mich.  563;  Buell  v.  Irwin,  24  Mich. 
145;  Harrett  v.  Kinney,  44  Mich. 
457;  Van  Auken  v.  Livingston,  34 
Mich.  384;  Moran  v.  Moran,  106 
Mich.  12;  Mich.  L.  &  I.  Co.  v. 
Thoney,  89  Mich.  231;  Paldi  v. 
Paldi,  95  Mich.  410;  Geiges  v. 
Greiner,  68  Mich.  153;  Shaw  v.  Hill, 
83  Mich.  327;  Yale  v.  Stevenson,  58 
Mich.  537.  See  Nims  v.  Sherman, 
43  Mich.  45;  White  v.  Hapeman,  43 
Mich.  267. 

34.  The  action  of  ejectment  is 
governed  by  Compiled  Laws  (1915), 
(1915),    Sec.    13168-13228,   inclusive. 


326 


THE  LAW  OF  LAND  CONTRACTS 


[§152 


radical  changes  have  been  made  in  the  proceedings  by  recent 
statutes.    The  principal  changes  are: 

1.  A  suit  in  ejectment  is  now  commenced  in  the  same  man- 
ner as  personal  actions,  i.  e.,  either  by  a  notice  to  plead  at- 
tached to  the  declaration  or  by  the  issuance  and  service  of  a 
summons.35 

2.  The  use  of  fictitious  names  of  the  plaintiff  or  defendant 
has  been  abolished.36 

3.  The  defendant  no  longer  has  a  new  trial  as  a  matter  of 
right.37 

4.  Where  no  personal  service  has  been  had  upon  the  de- 
fendant or  no  appearance  has  been  entered  in  the  case  by  the 
defendant,  the  judgment  in  ejectment  becomes  conclusive 
after  three  years.38 

Other  changes  in  regard  to  declarations  will  be  noted  in  the 
following  section: 

If  the  premises  for  which  the  action  is  brought  to  recover 
are  actually  occupied  by  any  person,  such  actual  occupant  must 
be  named  as  a  defendant,  but  if  not  so  occupied,  then  the  action 
must  be  brought  against  some  person  exercising  acts  of  owner- 
ship on  the  premises  claimed  or  claiming  title  thereto  or  some 
interest  therein.39 

It  has  been  held  that  mortgagees  before  foreclosure  and  sale 
are  not  proper  parties  defendant;40  and  that  a  wife  is  not  a 
necessary  party  where  the  homestead  is  not  concerned.41  But 
where  the  action  concerns  the  recovery  of  a  homestead,  then 
the  wife  is  a  necessary  party.42 

Where,  however,  the  plaintiff  is  proceeding  in  ejectment 
after  the  foreclosure  of  a  mortgage,  the  mortgagee  should  be 


35.  Compiled    Laws    (1915),    Sec. 
13172. 

36.  Compiled    Laws    (1915),    Sec. 
13173. 

37.  Compiled    Laws    (1915),    Sec. 
13197. 

38.  Compiled    Laws    (1915),    Sec. 
13198. 

39.  Compiled    Laws    (1915),    Sec. 
13171. 


40.  Dawson  v.  Peter,  119  Mich. 
281. 

41.  Bunce  v.  Bidwell,  43  Mich. 
542. 

42.  Kalkes  v.  Stormes,  93  Mich. 
480;  Hodson  v.  Van  Fossen,  26 
Mich.  68;  Henry  v.  Gregory,  29 
Mich.  68;  Rowe  v.  Kellogg,  54  Mich. 
206;  Sayles  v.  Curtis,  45  Mich.  279; 
Haviland  v.   Chase,   116   Mich.   216. 


§153] 


FORFEITURE   OF   LAND    CONTRACTS  327 


made  a  party  defendant.43  Both  landlord  and  tenant  are  proper 
defendants.44 

Where  the  plaintiff  fails  to  join  one  who  occupies  a  distinct 
portion  of  the  premises,  recovery  as  to  that  portion  will  be 
excluded.45 

The  legal  interest  mentioned  in  the  statute  means  a  legal 
interest  and  not  a  mere  equitable.46 

An  action  in  ejectment  is  not  barred  after  ten  years  occu- 
pancy if  it  does  not  appear  that  the  defendant's  possession  was 
adverse  to  the  plaintiff.47 

§  153.  Vendor's  Action   in   Ejectment — The   Declaration. — 

1.  The  statute  provides  that  it  shall  be  sufficient  for  the  plain- 
tiff to  aver  in  his  declaration  that  on  some  day,  therein  to  be 
specified  and  which  shall  be  after  his  title  or  right  accrued,  he, 
the  plaintiff,  was  possessed  of  the  premises  in  question,  and 
being  so  possessed  the  defendant  afterwards,  on  some  day  to 
be  stated,  entered  into  such  premises  and  that  the  defendant 
unlawfully  withholds  from  the  plaintiff  the  possession  thereof 
to  his  damage  in  any  nominal  sum  the  plaintiff  shall  think 
proper  to  state.48 

2.  It  is  also  provided  by  statute  that  the  plaintiff  shall  attach 
to  his  declaration,  and  the  defendant  to  his  plea,  if  he  claims 
title,  a  statement  of  the  title  relied  upon,  showing  from  and 
through  whom  such  title  was  obtained.49 

In  view  of  the  fact  that  under  the  decisions  the  vendee  is 
estopped  to  deny  the  vendor's  title,  it  is  doubtful  if  the  require- 
ments of  the  statute  with  reference  to  attaching  a  statement 
of  the  title  relied  upon  is  necessary.  It  would  seem  to  be  suf- 
ficient for  the  plaintiff  to  attach  to  his  declaration  a  copy  of  the 
land  contract  under  which  the  vendee  obtained  possession  of 
the  property.50 

43.  Haviland  v.  Chase,  116  Mich.  47.  Perkins  v.  Nugent,  45  Mich. 
216.                                                                   146. 

44.  Powers  v.  Scholtens,  70  Mich.  48    Compiled    Laws    (1915),    Sec. 

299-  •    13174. 

45.  Hendricks  v.  Rasson,  42  Mich. 

104  49.  Compiled    Laws    (191o),    Sec. 

46.  Dawson    v.    Peter,    119    Mich.      13184. 

181.  50.  See  Sec.  155,  Post. 


328 


THE  LAW  OF  LAND  CONTRACTS 


[§154 


§  154.  Ejectment  Declaration  Form.61 

"The  plaintiff  says: 

1.  That  on ,  19 ,  the  plaintiff  was  possessed  of 

the  following  premises :    (here  describe  them) ,  which  he  claims 
in  fee  (or  for  his  life,  or  as  the  case  may  be). 

2.  That  while  the  plaintiff  was  so  possessed,  the  defendant 
afterwards,  on ,  19 ,  entered  into  said  premises. 

3.  That  the  defendant  voluntarily  withholds  from  the  plain- 
tiff the  possession  thereof. 

4.  Wherefore  the  plaintiff  claims  a  judgment  for  the  posses- 
sion of  said  premises  and  damages  in  the  sum  of  $ " 

§  155.  Vendee  Estopped  to  Deny  Vendor's  Title. — Where  the 
vendee  has  been  put  into  possession  of  the  land  by  the  vendor 
and  continues  to  retain  that  possession  from  the  vendor,  he  is 
estopped  from  setting  up  in  his  defense,  in  contesting  any 
action  brought  against  him  by  the  vendor  based  on  the  contract 
of  sale,  that  the  vendor  is  not  owner  of  the  property  in 
question.58 


51.  Form  32  prepared  by  the  Com- 
mittee on  new  rules  under  the  Ju- 
dicature Act  appointed  by  the  State 
Bar  Association,  consisting  of  Alva 
M.  Cummins,  Edison  R.  Sunderland, 
Alfred  J.  Mills,  William  W.  Potter 
and  Judge  Chester  L.  Collins.  Draft 
of  this  declaration  was  prepared  by 
Professor  Edison  R.  Sunderland, 
acting  for  the  committee. 

52.  He   had   recognized   her  title 
and  was  not  in  a  position  to  disavow 
It  or  to  obtain  for  his  own  benefit 
a  title  hostile   to  it.     By  his   con- 
duct he  held  the  land  in  trust  for 
her,  and  equity  will  compel  him  to 
transfer    it    to    her.      Galloway    v. 
Finley,  12  Pet.    (U.  S.)   264;   Kirk- 
patrick    v.    Miller,    50    Miss.    521; 
Stephens  v.  Black,  77  Pa.  138;  Peay 
v.  Capps,  27  Ark.  160;  Cromwell  v. 
Craft,    47    Miss.    44;     Mitchell    v. 
Chisholm,  57  Minn.  148.     See  also, 
Thredgill  v.   Pintard,  12  How.    (U. 
S.)   24. 


"The  vendor  and  vendee  (of 
land)  stand  in  the  relation  of  land- 
lord and  tenant;  the  vendee  can- 
not disavow  the  vendor's  title."  Gal- 
loway v.  Finley,  12  Pet.  (U.  S.)  295. 

"After  doing  homage  to  his  ven- 
dor's title  by  purchase  and  entry 
under  it,  the  vendee  will  not  be  tol- 
erated to  repudiate  his  allegiance 
to  it,  and  transfer  it  to  another 
title  acquired  whilst  thus  in  pos- 
session. If  such  after-acquired  title 
should  be  paramount  the  vendee 
shall  be  esteemed  as  holding  it  in 
trust  for  his  vendor,  as  having  pro- 
vided it  to  support  and  maintain 
his  possession,  and  his  right  under 
his  original  vendor. 

"Whilst  a  court  of  equity  holds 
the  vendee  to  entire  good  faith  to 
his  vendor,  and  will  not  allow  him 
to  get  in  an  outstanding  title  or 
encumbrance  and  set  it  up  in  oppo- 
sition to  his  vendor,  yet  it  will  lend 
its  aid  to  reimburse  all  reasonable 


§  156J  FORFEITURE   OF   LAND   CONTRACTS  329 

But  where  the  vendee  has  been  ejected  from  the  land  by  a 
paramount  title,  or  has  surrendered  possession  of  the  land  to 
one  who  holds  a  title  superior  to  that  of  the  vendor,  the  vendee 
may,  in  any  action  between  him  and  the  vendor,  prove  that  the 
latter  had  no  title  to  the  land,  or  if  he  had  a  title  the  same  had 
been  terminated.63 

In  those  cases  where  the  vendor  has  not  the  power  to  make 
a  merchantable  title,  the  vendee  may  perfect  the  title  at  his 
own  risk  and  expense,  and  the  courts  will  require  the  vendor  to 
reimburse  him  for  his  expenses  thus  incurred.54 

Where  a  vendee  acquires  a  paramount  title  while  holding 
possession  under  the  vendor,  equity  will  treat  such  vendee  as 
a  trustee  for  the  vendor  because  he  holds  under  the  latter.66 

§  156.  Actions  in  Ejectment  by  Vendor  or  Vendee  Against 
Third  Persons. — It  is  provided  by  statute  66  that  no  person  can 
recover  real  estate  in  an  action  of  ejectment  unless  he  has  the 
right  to  recover  the  possession  thereof  at  the  time  of  the  trial. 
Under  the  decisions  where  the  vendee  is  entitled  to  possession 
of  the  real  estate  the  vendor  can  not  maintain  ejectment 
against  any  stranger  or  intruder  who  secures  possession  of  the 
real  estate  covered  by  the  contract  between  the  vendor  and 

advances    expended   to    fortify   the  defense  he  must  offer  to  rescind  the 

title.      At    the    same    time    it   will  contract."     Peay  v.  Capps,  27  Ark. 

rebuke  every  attempt  by   the  pur-  160. 

chaser  to  betray  or  invalidate  the  "A    vendee,    continuing    to    hold 

title."      Kirkpatrick    v.    Miller,    50  the  possession  of  land  to  which  his 

Miss.  527.  vendor    admitted    him,    cannot    ac- 

"A  vendee  under  articles  may  set  <luire  an  adverse  title  and  set  it  up 

up  an  outstanding  title  not  in  him-  against  his   vendor."     Cromwell  v. 

self,  but  when  he  buys  such  title,  Craft-  47  Miss-  44- 

he  is  trustee  of  his  vendor,  and  is  ',While  a  vendee  remains  in  pos- 

entitled   only   to   what  he   paid   to      8essIon  he  ls  est°PPf  fr°m  ^l 
«.    Ui,    ..  «*     i.  ™     i        tag  the  plaintiff's  title,  whether  it 

perfect  the  title.    Stephens  v.  Black,  °  ■    „  ..  .. 

is  good  or  bad.       Mitchell  v.  Chis- 
77  Pa.  138.  holni(  5?  Minn    148.    144  Mlch    pp 

"A   vendee   in    possession    under      358-359. 

a   contract  of   sale  can   not   retain  g3    Qateg  Re&1  PropertV(  Sec.  608. 

possession    and   avoid    payment   of 

,      ..   ,  .  ..  54.  Gates  Real  Property,  Sec.  60S. 

the  balance  of  the  purchase  money  °      vjatco 

on  the  ground  that  the  vendor  can  55.  Gates  Real  Property,  Sec.  608. 

not  make  as  good  a  title  as  agreed.  56.  Compiled    Laws    (1915),    Sec. 

Before  he  can  avail  himself  of  such      13170. 


330 


THE  LAW  OF  LAND  CONTRACTS 


[§156 


vendee,  as  such  right,  together  with  possession,  rests  with  the 
vendee.57 

§  157.  Summary  Proceedings  by  Vendor  for  Possession. — It 

is  provided  by  statute  that  when  any  person  holds  real  estate 
contrary  to  the  provisions  of  any  executory  contract  for  the 
purchase  thereof,  the  person  entitled  to  possession  may  make 
complaint  in  writing  under  oath  and  deliver  same  to  the  cir- 
cuit court  commissioner  or  justice  of  the  peace,  which  com- 
plaint shall  set  forth  that  the  person  complained  of  is  in  the 
possession  of  lands  or  tenants  in  question,  describing  them, 
and  that  such  person  holds  the  same  unlawfully  and  against 
the  rights  of  the  plaintiff.58  Upon  receiving  such  complaint, 
the  officer  to  whom  the  same  is  delivered  shall  issue  a  sum- 
mons directed  to  the  sheriff  or  to  any  constable  of  the  same 
county,  commanding  him  to  summon  the  defendant  to  appear 
before  such  officer  at  a  time  and  place  therein  to  be  specified, 
not  less  than  three  nor  not  more  than  six  days  from  the  issu- 
ing thereof,  to  answer  to  such  complaint.  The  officer  is  re- 
quired to  serve  said  summons  on  the  defendant  at  least  two 
days  before  the  time  of  the  appearance  mentioned  therein,  but 
if  he  is  unable  to  find  such  defendant  then  service  may  be 
made  by  leaving  a  copy  at  the  usual  place  of  abode  of  such 
defendant  in  the  presence  of  some  person  of  suitable  age  who 
shall  be  informed  of  its  contents. 

§  158.  Form  of  Complaint  in  Summary  Proceedings. — The 

following  is  a  form  of  complaint  in  common  use  in  summary 
proceedings  for  the  possession  of  real  estate. 


57.  Kuite  v.  Lage,  152  Mich.  638- 
639.  This  case  holds  that  the  ven- 
dee under  an  executory  contract 
of  purchase,  is  the  person  entitled 
to  maintain  ejectment  against  a 
stranger  who  ousts  him  for  the 
land,  citing  in  support  the  folio-w- 
ing cases:  Covert  v.  Morrison,  49 
Mich.  135;  Olin  v.  Henderson,  120 
Mich.  149;  Michigan  Land  and  Iron 
Company  v.  Thoney,  89  Mich.  226; 
Bay  County  v.  Bradley,  39  Mich. 
163;    Van   Vleet   v.    Blackwood,   39 


Mich.  728;   Corning  v.  Loomis,  111 
Mich.  23. 

58.  Summary  Proceedings  for  the 
Recovery  of  Land,  Sec.  13240  to 
Sec.  13252,  Compiled  Laws  1915. 

Sec.  1375  Cummings  and  Beecher 
supplement  to  Judicature  Act. 

P.  A.  1917,  Sec.  243.  Amending 
former  act  so  that  vendee  has 
thirty  days  from  date  of  Judgment 
to  pay  up  same. 


§  160  j        FORFEITURE  OF  LAND  CONTRACTS  331 

State  of  Michigan,  1 

County  of j 

To   (herein  insert  name  of  Commissioner  or  Justice  of  the 
Peace  as  case  may  be),  of County,  Michigan. 

The  complaint  of  (here  insert  name  of  complainant),  of 
said  county  and  State,  that,  (here  insert  names  of  vendees  or 
those  in  possession),  of  the  following  described  lands  and  tene- 
ments situated  in,  (here  give  location  of  premises),  said  County 
and  State,  to-wit;  (here  describe  real  estate). 

That  the  defendants  (here  insert  names  of  those  in  posses- 
sion), hold  said  premises  unlawfully  against  the  rights  of  the 
plaintiff  and  that  said  plaintiff  is  entitled  to  the  possession  of 
the  same. 

Wherefore,  this  Plaintiff  prays  that  proceedings  may  be 
had  according  to  the  statute  in  such  cases  made  and  provided, 
and  that  the  possession  of  said  premises  may  be  restored  to 
said  Complainant 


State  of I 

County  of j 

On  this day  of ,  A.  D.  192....,  personally 

appeared  before  me,  the  said and  on  oath 

says,  that  he  heard  read  the  foregoing  complaint,  by  him  sub- 
scribed and  knows  the  contents  thereof,  and  that  the  same  is 
true. 


Title  of  Officer. 

§  159.  The  Plea  in  Summary  Proceedings. — The  only  plea 
contemplated  by  the  statute  is  "not  guilty."  If  the  defendant 
shall  neglect  or  refuse  to  plead  the  officer  before  whom  such 
proceedings  are  pending,  shall  enter  a  plea  of  not  guilty  for 
him  and  the  issue  as  to  whether  or  not  the  plaintiff  is  entitled 
to  the  possession  of  the  premises  shall  be  tried  and  judgment 
shall  be  rendered  and  the  same  proceedings  shall  be  had  thereon 
in  all  respects  as  in  cases  of  forcible  entry  and  detainer  and 
with  a  like  effect.59 

§  160.  Incidents  in  Relation  to  Summary  Proceedings. — 
Where  the  defendant  enters  a  plea  of  not  guilty,  such  plea 

59.  Compiled    Laws,    Sec.    13244. 


332  THE  LAW  OF  LAND  CONTRACTS  [§160 

waives  irregularities  in  the  summons  and  venire.60  The  circuit 
court  commissioner  is  not  obliged  to  wait  one  hour  for  the 
defendant  to  appear.61  It  is  proper  to  raise  questions  of  title 
under  the  plea  of  not  guilty.62  The  intervention  of  one  day  be- 
tween the  verification  of  the  complaint  and  the  issuing  of  the 
summons  will  not  invalidate  the  proceedings.63  The  return  day 
must  be  three  entire  days  after  the  issuing  of  the  summons.64 
The  statute  provides  that  either  party  feeling  himself  ag- 
grieved may  appeal  from  the  judgment  of  the  commissioner  or 
justice  to  the  Circuit  court  upon  the  execution  of  an  appeal 
bond  in  a  penalty  to  be  fixed  by  the  officer  taking  the  same, 
which  must  not  be  less  than  double  the  amount  of  the  annual 
rental  value  of  the  premises.65 

§  161.  Substituted  Service.— By  statute  66  it  is  provided  that 
if  the  defendant  cannot  be  found,  service  of  summons  may 
be  made  by  leaving  such  copy  at  the  usual  place  of  abode  of 
such  defendant  in  the  presence  of  some  person  of  suitable  age 
who  shall  be  informed  as  to  its  contents.  This  statute  being 
in  derogation  of  the  common  law  is  strictly  construed  and  the 
officer  must,  if  he  finds  anyone  on  the  premises  or  in  charge 
thereof,  inform  such  person  of  the  contents  of  the  writ.  Failure 
to  do  so  will  render  it  nugatory.67 

Where  substituted  service  is  had,  the  party  defendant  is 
entitled  to  two  full  days'  notice  to  prepare  for  the  day  of  ap- 
pearance, the  same  as  in  case  of  personal  service.68 

60.  Folkner  v.  Beers,  2  Doug.  p.  before  the  time  of  appearance  men- 
117  tioned  therein,  by  delivering  to  the 

„„   „„.  ,        defendant,    if   to    be    found    within 

fil    Fowler  v.  Breedan,   98   Mich.      .,  ..  .    .    .    ., 

dj..  ruwici    v.  Ajiccuau,  the  county(  a  copy  thereof,  but  if 

p-  133-  the   defendant  shall  not  be  found 

62.  Butler  v.  Bertrand,  97  Mich.  p.  it  shall  be  served  by  leaving  such 
50.  copy  at  the  usual  place  of  abode  of 

63.  Grueler     v.     McRoberts,      48  8uch  defendant,  in  the  presence  of 


Mich.  p.  316. 


some   person  of  suitable  age  who 
shall  be  informed  of  its  contents." 


64.  Dolee   v.    Ireland,   9   Mich,   p       section  13243,  Compiled  Laws  1915. 
157. 

„    _         ..    .  T       a  1Q1r    „,„  67.  Knopf    v.    Herta,    212    Mich. 

65.  Compiled  Laws  1915,  13252. 

622. 

66.  "The    officer    to    whom    such 

summons   shall   be   delivered   shall  68.  Zimmerman  v.  May,  208  Mich, 

serve  the   same  at  least  two  days      55. 


§  162]  FORFEITURE   OF   LAND    CONTRACTS  333 

If  the  defendant  does  not  appear  and  personal  service  is  not 
obtained,  in  land  contract  cases  it  is  thought  to  be  the  better 
practice  not  to  take  or  enter  a  judgment  against  the  defendant 
until  personal  service  upon  him  can  be  had.69 

§  162.  Steps  on  Appeal  from  Circuit  Court  Commissioner. — 

Either  party  conceiving  himself  aggrieved  by  the  determina- 
tion or  judgment  of  the  Circuit  Court  Commissioner  in  a  sum- 
mary proceeding  to  recover  the  possession  of  land  where  the 
defendant  holds  the  same  contrary  to  the  conditions  or  cove- 
nants of  any  land  contract,  may  appeal  therefrom  to  the  Circuit 
Court  for  the  same  county,  within  the  same  time,  in  the  same 
manner,  and  the  same  proceedings  had  as  in  cases  of  appeals 
from  judgments  rendered  before  justices  of  the  peace.70 

The  first  step  in  effecting  an  appeal  is  to  file  an  affidavit, 
a  form  of  which  is  hereinafter  set  out,  a  bond  with  sufficient 
sureties  to  be  approved  by  the  justice,  and  to  pay  to  the  justice 
the  taxable  costs  of  the  prevailing  party  together  with  his  fees 
for  making  out  the  return  on  said  appeal,  and  further  sum 
of  $3.00  to  be  paid  to  the  clerk  of  the  court,  which  sum  shall 
be  paid  to  the  clerk  of  the  court  by  the  commissioner  at  the 
time  the  return  on  appeal  is  filed  with  the  county  clerk.71 

69.  Davis  Michigan  Practice  Be-  court  in  the  same  manner;  and 
fore  Circuit  Court  Commissioners,  if  such  appeal  is  taken  by  the  de- 
Section  133.  fendant   the   appeal   bond   shall   be 

70.  Three  Comp.  Laws  Mich.  in  a  penalty  to  be  fixed  by  the  offi- 
1915,  Sec.  13252.  cer  taking  the  same,  not  less  than 

71.  "Either  party  conceiving  him-  double  the  amount  of  the  annual 
self  aggrieved  by  the  determina-  rental  value  of  the  premises  in  dis- 
tion  or  judgment  of  the  commis-  Pute<  to  be  determined  by  the  com- 
sioner,  or  other  officer,  made  or  rnissioner,  and  shall  be  executed  by 
rendered  under  the  provisions  of  two  or  more  sufficient  sureties,  and 
this  chapter,  may  appeal  therefrom  sna11  also  in  addition  to  the  usual 
to  the  circuit  court  for  the  same  conditions  of  an  appeal  bond  con- 
county,  within  the  same  time,  in  tain  a  further  condition,  that  if  the 
the  same  manner,  and  return  may  Plaintiff  obtain  restitution  of  said 
be  compelled,  and  the  same  pro-  Premiums  in  said  suit,  the  said 
ceedings  shall  be  thereon  had,  as  defendant  will  forthwith  pay  all 
near  as  may  be,  and  with  like  ef-  rent  due  or  to  become  due  the  plain- 
feet,  as  in  cases  of  appeals  from  tiff  for  the  Premises  described  in 
judgments  rendered  before  justices  tne  complaint,  or  the  rental  value 
of  the  peace,  and  costs  shall  be  thereof,  up  to  the  time  said  plain- 
awarded  and  collected  in  the  circuit  tiff  shall  obtain  possession  thereof, 


334  THE  LAW  0F  LAND  CONTRACTS  [§  162 

Upon  payment  of  the  foregoing  fees  and  the  filing  of  said 
affidavit  and  bond,  the  commissioner  usually  prepares  the  re- 
turn on  appeal  in  his  own  office.  An  appeal  must  be  perfected 
within  five  days  after  judgment  is  rendered,72  but  the  time 
for  such  appeal  may  be  extended  by  the  Circuit  Court  on  good 
cause  shown.73 

The  amendment  of  1917,74  providing  that  no  writ  of  restitu- 
tion shall  issue  until  the  expiration  of  thirty  days  after  the 
entry  of  judgment  of  restitution  in  proceedings  upon  a  land 
contract  has  been  held  not  to  extend  the  time  within  which 
an  appeal  might  be  taken  from  five  to  thirty  days.76 

The  affidavit  for  appeal,  the  common  form  of  affidavits  on 
appeal  from  justices'  courts  is  sufficient.76 

§  163.  Form  of  Affidavit  on  Appeal. — The  affidavit  of  appeal 
should  contain  the  following  essential  averments : 

1.  It  should  name  the  commissioner  before  whom  the  pro- 
ceedings were  had. 

2.  It  should  name  the  parties,  the  date  of  the  judgment,  the 
premises  involved,  and  the  amount  of  costs  taxed,  and  should 
conclude  with  an  averment  that  the  judgment  rendered  is  not 
in  accordance  with  the  just  rights  of  the  deponent  as  he  verily 
believes,  and  that  the  deponent  conceives  himself  aggrieved 
thereby,  and  appeals  therefrom  to  the  Circuit  Court  for  the 
county  in  which  the  proceedings  are  pending. 

3.  The  affidavit  should  be  duly  verified. 
The  following  form  has  been  approved : 

State  of  Michigan, 

County  of 

John  Doe,  of  said  county,  being  duly  sworn,  says  that  a 
final  judgment  was  rendered  upon  an  issue  of  fact  and  law, 

together  with  costs  of  suit  in  prose-  72.  3  Comp.  Laws  Mich.  1915,  Sec. 

cuting   said    complaint   and   obtain-  14402. 

ing    restitution    of    said    premises,  73.  3  Comp.  Laws  Mich.  1915,  Sec. 

and   if  the   plaintiff  obtain  restitu-  14408;   Bearse  v.  Aldrich,  40  Mich. 

tion  of  said  premises,  he  may,  at  his  529. 

election,    sue    and   recover   on    said  74.  Act  243,  Pub.  Acts  1917. 

bond,  or  bring  his  action  against  the  75.  Feldman   v.   Zimmerman,   20S 

defendant,    under    section    twenty-  Mich.  240. 

three  of  this  chapter.     3  Compiled  76.  Hanaw    v.    Bailey,    83    Mich. 

Laws  Mich.  1915,  Sec.  13252.  27. 


ss. 


§  164]  FORFEITURE   OF   LAND    CONTRACTS  335 

joined  between  the  parties  by ,  Circuit  Court  Com- 
missioner in  and  for  said  county,  on  the  day  of 

,  A.  D.  19 ,  in  favor  of  Richard  Roe,  as  plaintiff, 

and  against  deponent,  John  Doe,  as  defendant,  whereby  the 
said  John  Doe  is  required  to  leave  and  deliver  up  possession 

of  the  following  premises: to  said  Richard  Roe  and 

for dollars,  costs  of  suit. 

Deponent  further  says  that  such  judgment  is  not  in  accord- 
ance with  the  just  rights  of  said  deponent,  as  deponent  verily 
believes,  and  that  said  deponent  conceives  himself  aggrieved 
thereby,  and  appeals  therefrom  to  the  Circuit  Court  for  the 

County  of ,  and  further  deponent  sayeth  not. 

John  Doe. 

Subscribed  and  sworn  to  before  me  this day  of 

,  A.  D.  19 


Circuit  Court  Commissioner 


§  164.  Bond  On  Appeal. — The  statute  provides  that  in  addi- 
tion to  the  usual  conditions  of  an  appeal  bond,  it  must  contain 
a  further  condition,  that  if  the  plaintiff  obtains  restitution  of 
the  premiums  in  the  suit,  the  defendant  will  forthwith  pay  all 
rent  due  or  to  become  due  the  plaintiff  for  the  premises  de- 
scribed in  the  complaint  or  the  rental  value  thereof  up  to  the 
time  the  plaintiff  shall  obtain  possession  thereof,  together 
with  costs  of  suit  in  prosecuting  the  complaint  and  obtaining 
the  restitution  of  the  premises.77 

The  following  form  of  bond  on  appeal  has  been  sustained : 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  we,  Rich- 
ard Roe,  as  principal,  and , as  sureties, 

are  held  and  firmly  bound  unto  John  Doe  in  the  sum  of 

dollars,  to  be  paid  to  the  said  John  Doe,  or  to  his  certain 
attorneys,  heirs,  administrators,  and  assigns;  to  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  ourselves  our  heirs, 
executors,  and  administrators,  and  each  and  every  one  of 
them,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the day  of , 

19 

Whereas,  judgment  was  rendered  on  the day  of 

77.  3    Compiled    Laws    1915,    Sec.    13252. 


336  THE  LAW  OF  LAND  CONTRACTS  [§  164 

t  by  ,  a  Circuit  Court  Commissioner  of  the 

County  of ,  and  State  of  Michigan,  in  favor  of  the 

said  John  Doe,  plaintiff,  for  the  restitution  of  the  following 

lands  and  tenements,  to-wit:  ,  and  for  the  sum  of 

dollars,  costs  of  suit,  against  the  said  Richard  Roe, 

as  defendant. 

And  whereas,  the  said  Richard  Roe,  conceiving  himself 
aggrieved  by  the  said  judgment,  has  appealed  to  the  Circuit 
Court  for  the  County  of 

Now,  the  condition  of  this  obligation  is  such  that  if  the 
said  Richard  Roe  shall  prosecute  his  appeal  with  all  due  dili- 
gence to  a  decision  in  the  said  Circuit  Court,  and  he  shall 
abide  by  said  judgment,  and  pay  the  amount  of  the  same, 
including  all  costs  with  interest  thereon,  together  with  the 
amount  of  rent  found  due  the  plaintiff  for  said  premises  with 
interest,  and,  in  case  the  said  appeal  shall  be  discontinued,  if 

the  said  shall  pay  the  amount  of  the  judgment 

rendered  against  him  before  said  commissioner,  including  all 
costs,  with  interest  thereon,  together  with  the  rent  due  upon 
said  premises  up  to  and  including  the  date  of  the  dismissal  of 
said  appeal,  with  interest  thereon,  then  this  obligaiton  shall 
be  void,  otherwise  to  remain  in  full  force  and  effect. 

Richard  Roe  (Seal) 

(Seal) 

(Seal) 

The  bond  may  be  approved  by  a  deputy  county  clerk.78 

The  jurisdiction  of  the  Circuit  Court  on  appeal  is  no  greater 
than  the  commissioner's.79 

The  discretion  of  the  Circuit  Court  to  allow  costs,  including 
certain  fees,  in  these  appeals,  cannot  be  overcome  by  rule  of 
court  not  to  allow  them  in  certain  cases.80 

The  judgment  of  the  Circuit  Court  can  be  reviewed  by  writ 
of  error  only.81 

The  remedies  of  appeal  and  certiorari  to  the  Circuit  Court 
are  adequate  and  complete  and  the  Supreme  Court,  while  it 

78.  Cole  v.  Judge,  106,  Mich.  692.      Mich.    356;     Peters    v.    Fisher,    50 

79.  Mulder   v.    Carlett,    54    Mich.      Mich-  331- 

80.  81.  Parker  v.   Copeland,   4   Mich 

80.  Brewing    Co.    v.    Judge,    108      528. 


§165] 


FORFEITURE   OF   LAND    CONTRACTS  337 


may  have  the  power,  is  clearly  not  bound  to  review  a  com- 
missioner's judgment  upon  a  common  law  certiorari." 

A  reversal  on  certiorari  does  not  secure  a  new  trial,  but 
ends  the  proceedings ;  on  appeal  a  new  trial  is  of  right.88 

§  165.  Return  On  Appeal.— It  is  the  duty  of  the  commis- 
sioner after  having  prepared  the  return  on  appeal,  to  duly  file 
the  same  with  the  Clerk  of  the  Circuit  Court,  and  when  such 
return  has  been  filed,  the  Circuit  Court  shall  be  possessed  of 
the  cause,  the  same  as  if  it  had  originally  been  commenced  in 
that  court.84 

The  following  form  of  return  may  be  used  on  appeal : 

(Caption.) 

Before  ,  Circuit  Court  Commissioner  for  the 

County  of 

An  appeal  having  been  made  in  the  above  cause:  I, , 

commissioner  before  whom  the  above  cause  was   tried,   do 

hereby  return  to  the  Circuit  Court  for  the  County  of , 

the  proceedings  had  before  me  therein  as  follows : 

The  plaintiff  prosecuted  said  action  by  his  attorney,  John 
Doe,  and  defendant  appeared  by  his  attorney,  Richard  Roe. 
(If  parties  prosecuted  in  their  individual  capacity,  so  state.) 

This  cause  was  commenced  by  summons  issued  on  the 

day  of ,  A.  D.  19....,  returnable  at  my  office 

in  the of in  said  county  of 

on  the day  of aforesaid  at 

o'clock  in  the noon. 

The  following  is  the  substance  of  the  complaint:  (here  insert 
copy  of  the  complaint). 

The  defendant's  plea  was  as  follows:  (here  state  the  defend- 
ant's plea,  if  in  writing,  set  out  verbatim) . 

Said  cause  was  by  agreement  of  the  parties,  tried  by  the 
court  (if  tried  by  a  jury,  here  state,  and  also  the  verdict  of 
the  jury). 

That  on  the  day  of  ,  A.  D.  19....,  I 

rendered  judgment  against  the  defendant  for  the  restitution 

82.  Smith  v.  Reed,  24  Mich.  240;  84.  3  Compiled  Laws  1915,  Sec- 
Farrell  v.  Taylor,  12  Mich.  113.              tion   14417. 

83.  Knapp    v.    Gambsy,    47    Mich 
377. 


338 


THE  LAW  OF  LAND  CONTRACTS 


[§165 


of  the  premises  described  in  said  complaint,  and  for  $ 

costs. 

As  to  the  matters  and  alleged  errors  stated  and  set  forth 
in  the  affidavit  filed  to  appeal  said  cause,  hereto  annexed,  I  do 
further  rturn  (here  set  forth  the  facts  relating  to  the  alleged 
errors)  and  I  do  further  return  that  the  affidavit  and  bond 

herewith  returned  were  delivered  to  me  on  the  

day  of ,  and  the  cost  of  suit  and  my  fees  were  at 

the  same  time  paid. 

Given  under  my  hand  and  seal day  of 

A.  D.  19 


Circuit  Court  Commissioner  for 
County,  Michigan. 

§  166.  Effect  of  Final  Judgment  in  Possessory  Proceedings. 

— Where  the  vendor  elects  to  pursue  his  remedy  before  a  Cir- 
cuit Court  Commissioner  for  possession  of  the  property,  and 
the  vendee  fails  to  pay  the  amount  found  to  be  due  on  the 
contract  by  the  commissioner  within  30  days  as  provided  by 
the  statute,85  in  the  absence  of  fraud,  mistake,  or  any  appeal, 
the  judgment  of  the  commissioner  becomes  final  and  equity 
will  not  entertain  a  bill  either  for  specific  performance  or  to 
redeem  from  the  forfeiture.86 

It  would  further  seem  that  if  an  appeal  is  taken  to  the  Cir- 
cuit Court  from  the  judgment  of  the  commissioner,  the  vendee 
will  have  thirty  days  from  the  determination  of  such  appeal 


85.  Public  Acts  243,  1917.  Giving 
vendee  30  days  in  which  to  pay  the 
judgment. 

86.  Security  Investment  Co.  v. 
Meister,  214  Mich.  338. 

Said  the  court  in  the  above  en- 
titled case: 

"Regular  proceedings  were  had 
under  the  statute  before  the  Cir- 
cuit Court  Commissioner  and  judg- 
ment  of   restitution  was   rendered 


by  him,  and  amount  then  due  was 
fixed.  The  time  given  defendant 
under  the  statute  after  judgment  in 
which  to  redeem  expired  without 
payment  of  the  amount  so  fixed. 
There  is  no  accident,  fraud,  or  mis- 
take alleged.  Under  these  circum- 
stances the  judgment  rendered  in 
a  case  where  the  commissioner  had 
jurisdiction  is  a  finality  and  neither 
it  nor  the  evidence  upon  which  it 
is  based  may  be  reviewed  by  a 
court  of  equity." 


§  168]  FORFEITURE   OF   LAND    CONTRACTS  339 

to  pay  the  amount  found  due  in  the  Circuit  Court  on  the 
contract.87 

§  167.  Effect  of  Registration  of  Writ  of  Restitution.— Where 

the  vendee  under  a  land  contract  places  the  same  on  record 
and  fails  to  abide  by  the  terms  and  conditions  of  the  contract, 
the  vendor,  after  a  forfeiture  under  the  statute,  is  permitted 
to  place  the  writ  of  restitution  on  record  and  thus  give  notice 
to  all  persons  of  the  termination  of  all  rights  of  defendants  in 
or  to  the  lands  or  tenements  in  question.88 

Where  the  defendant  has  allowed  a  judgment  of  restitution 
to  be  entered  against  him  before  a  circuit  court  commissioner 
as  is  provided  in  the  above  statute,  he  cannot  ask  to  have  the 
facts  and  law  upon  which  it  is  based  reviewed  in  a  court  of 
equity.89 

§  168.  Proceedings  to  Have  Forfeiture  Decreed. — A  court 
of  equity  abhors  forfeitures  and  will  on  some  occasions  relieve 
from  them.90 

Where  a  forfeiture  has  been  legally  effected  it  is  possible 
for  a  party  to  go  into  a  court  of  equity  and  by  appropriate 
pleadings  set  up  the  fact  that  a  forfeiture  has  been  legally 
effected  between  the  parties  and  ask  for  a  decree  and  pray 
for  relief,  decreeing  the  legality  of  such  forfeiture  and  quieting 
the  title  against  the  defendant.91 

This  course  seems  to  be  necessary  or  desirable  only  in  case 
where  the  vendor  has  declared  a  forfeiture  and  has  obtained 
the  possession  of  the  premises  without  resort  to  either  fore- 
closure procaedings  or  summary  proceedings  under  the  statute, 
as  in  event  the  former  action  were  taken  the  record  would 
be  notice  to  all  parties  that  the  rights  of  the  vendee  in  the 
contract  had  been  determined  and  in  the  latter  case  a  regis- 
tration of  the  writ  of  restitution  as  provided  by  the  statute  92 
would  have  like  effect. 

87.  Smith  v.  Nelson,  165  Mich.  89.  Security  Investment  Co.  v. 
438.     Holding  that  vendee  had  five      Meister,  114  Mich.  344. 

days   from   date   of  final   judgment  90.  See  Sec.  171-184  Post. 

in  the  Circuit  Court.  91.  Security       Investment       Co., 

88.  Pub.  Acts  Mich.  1917,  No.  343.      supra. 

92.  Pub.    Acts,    1917,   No.    243. 


340  THE  LAW  0F  LAND  CONTRACTS  [§  169 

§  169.  Bill  of  Complaint — Form  to  Have  Forfeiture  Legally 
Established. 

STATE  OF  MICHIGAN 

In  the  Circuit  Court  for  the  County  of 

In  Chancery 
John  Doe, 
Plaintiff, 
vs. 
Richard  Roe, 
Defendant^ 

To  the  Circuit  Court  for  the  County  of 

John  Doe,  of  the  City  of ,  County  of , 

and  State  of  Michigan,  plaintiff  herein,  complains  of  Richard 
Roe,  defendant  herein  and  respectfully  shows  unto  this  Hon- 
orable Court: 

I.  That  he  now  is  and  for  a  long  time  prior  hereto,  has 
been  the  owner  in  his  own  right,  in  fee  simple  of  all  that  cer- 
tain piece  or  parcel  of  land  situated  in  the  City  of 

in  said  county  ,  and  State  of  Michigan,  described 

as  follows:  (here  insert  description  as  in  the  contract),  of  the 

value  of  dollars,  and  as  such  owner  did  on  the 

day  of ,  19....,  enter  into  an  agreement 

to  sell  the  same  to  Richard  Roe,  the  defendant  herein,  for  the 

sum  of dollars,  to  be  paid  as  follows: 

And  the  said  defendant  did  covenant  and  agree  to  pay  said 
sum  above  mentioned,  and  to  pay  said  sums  with  interest 
thereon  at  the  time  set  forth  in  said  contract,  a  true  copy  of 
which  is  hereto  attached,  marked  "Exhibit  A"  and  made  a 
part  of  this  bill  of  complaint,  and  also  agreed  to  pay  and  satisfy 
all  taxes  and  assessments  of  every  nature  that  should  by  any 
lawful  authority  be  levied  or  assessed  upon  said  land,  until  the 
whole  of  said  purchase  money,  as  well  as  interest  and  prin- 
cipal should  be  fully  paid. 

II.  That  in  consideration  of  the  premises  the  plaintiff,  did 
in  said  land  contract,  covenant  and  agree  that  upon  the  full 
payment  of  the  said  purchase  money  in  the  manner  aforesaid, 
and  upon  the  full  performance  by  the  said  defendant  of  the 
said  covenants  and  agreement  on  his  part  to  be  kept  and  per- 
formed, this  plaintiff,  would  by  a  good  and  sufficient  deed  of 


8  169  I  FORFEITURE  OF   LAND   CONTRACTS  341 

conveyance,  grant  and  convey  the  said  above  described  land 
belonging  to  the  said  plaintiff,  to  the  said  defendant,  his  heirs, 
and  assigns,  forever,  in  fee  simple. 

III.  That  by  the  terms  of  said  land  contract,  the  defendant 
might  take  possession  of  said  premises  and  continue  in  the 
actual  occupation  thereof  so  long  as  he  should  perform  his  part 
of  the  covenants  and  agreements  in  said  contract  contained, 
and  that  if  the  said  defendant  should  fail  to  perform  his  part 
of  the  covenants  and  agreements,  or  any  part  thereof,  then 
this  plaintiff  might  and  should  have  the  right  to  declare  the 
said  contract  null  and  void  and  to  retain  all  sums  of  money 
that  might  have  been  paid  on  said  premises  and  might  and 
should  have  the  right  to  take  immediate  possession  of  the 
said  premises. 

IV.  That  the  said  defendant  has  made  default  in  the  per- 
formance of  his  part  of  the  covenants  and  agreements  in  the 
said  land  contract,  and  has  not  paid  to  this  plaintiff  the  install- 
ment of  the  purchase  money  which  fell  due  on  the 

day  of ,  A.  D.  19....  (state  breaches  in  full),  although 

the  time  for  the  payment  of  such  installment  has  long  since 
elapsed  and  that  there  is  now  due  and  unpaid  to  this  plaintiff 

on  said  contract  for  principal  and  interest,  the  sum  of 

dollars. 

V.  That  the  said  defendant  has  also  made  default  in  the 
payment  of  taxes  lawfully  levied  on  said  premises  and  has 

failed  to  pay  the  taxes  for  the  year  19 ,  although  the  time 

limit  by  law  for  the  payment  thereof  has  long  since  elapsed 
and  this  plaintiff,  for  his  own  protection,  has  been  compelled 
to  pay  and  has  paid  such  taxes  amounting  to  the  sum  of 

dollars,  on  or  about  the day  of 

19 ;  and  that  the  said  defendant  is  equitably  indebted  to 

this  plaintiff  in  said  sum  with  interest  from  said  last  men- 
tioned date. 

VI.  That  on   the day  of A.  D.   19 , 

plaintiff  duly  served  on  the  defendant  a  notice  of  forfeiture, 
declaring  said  contract  duly  and  legally  forfeited  and  the  con- 
tractual relations  between  the  plaintiff  and  defendant  duly 

terminated  and  severed;  that  on  the day  of 

A.  D.  19 ,  plaintiff  duly  made  a  demand  on  the  defendant 


342  THE  LAW  OF  LAND  CONTRACTS  [§  169 

for  the  surrender  to  the  plaintiff  of  possession  of  said  prem- 
ises; that  thereupon  said  defendant  forthwith  surrendered  to 
the  plaintiff  possession  of  said  premises  and  that  plaintiff  has 
been  in  possession  of  said  premises  ever  since,  and  that  the 
forfeiture  of  said  contract  is  legal  and  complete. 
Wherefore  plaintiff  prays  as  follows: 

1.  That  a  decree  may  be  entered  in  this  cause,  decreeing 
that  said  contract  heretofore  existing  between  the  plaintiff 
and  defendant  covering  the  above  described  real  estate  has 
been  legally  forfeited  and  terminated  by  this  plaintiff  and  that 
the  plaintiff  is  the  sole  owner  of  said  property,  free  from  any 
and  all  claims  of  the  defendant  growing  out  of  said  contract. 

2.  That  this  plaintiff  may  have  such  further,  other  or  dif- 
ferent relief  as  shall  be  agreeable  to  equity  and  good  con- 
science. 

And  this  plaintiff  will  ever  pray,  etc. 


Plaintiff. 


Attorney  for  Paintiff. 


§  170.  Decree,  Form  of  Declaring  Forfeiture  Effected. 

STATE  OF  MICHIGAN 

In  the  Circuit  Court  for  the  County  of  

In  Chancery 
John  Doe, 
Plaintiff, 
vs. 
Richard  Roe,' 
Defendant. 
At  a  session  of  said  court  held  in  the  court  house  in  the  City 

of  ,  on  the  day  of  ,  A.  D. 

19 

Present:  Honorable 

Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  bill  of  com- 
plaint taken  as  confessed  by  the  said  defendant  (or  upon 
pleadings  and  proofs  taken  in  open  court,  as  the  case  may  be) , 
and  thereupon,  it  appearing  to  the  court  now  here  by  compe- 
tent evidence,  that  the  plaintiff  in  this  cause  had,  prior  to 


§  170]  FORFEITURE    OF   LAND   CONTRACTS  343 

the  institution  of  suit,  legally  effected  a  forfeiture  of  the  con- 
tract set  up  and  described  in  plaintiff's  Bill  of  Complaint,  and 
that  such  forfeiture  had  been  fully  effected  prior  to  the  insti- 
tution of  said  suit,  and  that  the  interest  of  said  defendant 
had  been  terminated  therein  and  that  plaintiff  had  taken  pos- 
session of  said  property. 

It  is  therefore  Ordered,  Adjudged  and  Decreed  and  this 
court  by  virtue  of  the  authority  therein  vested,  doth  Order, 
Adjudge  and  Decree  that  said  contract  (here  describe  the  con- 
tract) covering  the  following  described  real  estate  (here  insert 
description  of  real  estate)  has  been  duly  and  legally  forfeited 
by  plaintiff  prior  to  the  institution  of  this  action  and  that  the 
defendant  has  no  right,  title  or  interest,  either  legal  or  equi- 
table in  said  property. 


Circuit  Judge. 


CHAPTER  X 

FORFEITURE  WHEN  SUSTAINED,  WHEN  RELIEF  FROM  GRANTED 
ILLUSTRATIVE  CASES,  PLEADING,  PRACTICE  AND  FORMS 

§  171.  Relief  From  Forfeiture,  When  Granted  —General  Principles. 

§  172.  Forfeiture  of  Contract  for  Violation  of  Nonassignment  Clause. 

§  173.  Same  Subject  Continued. 

§  174.  Forfeiture  Not  Sustained.     Illustrative  Cases. 

§  175.  Relief  From  Forfeiture  Granted.     Illustrative  Cases. 

§  176.  Examples  of  Relief  From  Forfeiture  Granted. 

§  177.  Relief  From  Forfeiture  Granted.     Illustrative  Cases. 

§  178.  Relief  From  Forfeiture  Granted.    Illustrative  Cases. 

§  179.  Forfeiture  Sustained.     Illustrative  Cases. 

§  180.  Forfeiture  Sustained.    Illustrative  Cases. 

§  181.  Forfeiture  Sustained.    Illustrative  Cases. 

§  182.  Forfeiture  Sustained.     Illustrative  Cases. 

§  183.  Relief  From  Forfeiture  Necessity  of  Tender. 

§  184.  Relief   From    Forfeiture   After   Final   Judgment    by    Circuit   Court 

Commissioner. 
§  185.  Relief   From    Forfeiture,    Bill    of   Complaint,    Form    of,    Including 

Averments  for  Specific  Performance  and  Injunctive  Relief. 
§  185A.  Pleadings   and   Briefs  in   Late   Michigan   Cases   Involving  Relief 

From  Forfeiture. 

§  171.  Relief  From  Forfeiture,  When  Granted — General  Prin- 
ciples.— It  is  difficult  to  formulate  any  hard  and  fast  rules 
which  control  courts  of  equity  in  granting  relief  from  for- 
feiture in  land  contract  cases,  as  the  courts  do  not  seem  to 
be  moved  so  much  by  any  general  principles  of  equity  juris- 
prudence as  by  the  equities  of  the  particular  case  before  the 
court.  Generally  speaking,  it  may  be  said  that  where  the  for- 
feiture of  the  land  contract  would  result  in  a  substantial  loss 
to  the  vendee  and  the  vendor's  position  has  not  materially 
changed  by  reason  of  or  since  the  forfeiture  of  the  contract 
and  the  vendee's  laches  are  not  particularly  great,  the  vendee 
will  be  granted  relief  from  the  forfeiture  if  he  pays  into 
court  all  arrearages  on  the  contract  together  with  interest 
thereon.  Thus  where  a  vendee  had  been  in  arrears  under  a 
land  contract  which  provided  for  a  forfeiture  upon  nonpayment 
for  a  period  of  one  year  or  more,  and  had  never  tendered 
or  offered  to  pay  the  sum  called  for  by  the  contract,  the 


§  171]  FORFEITURE  WHEN   SUSTAINED  345 

court  in  order  to  prevent  serious  loss  to  the  vendee  permitted 
him  to  redeem  from  the  forfeiture  1  where  there  was  litiga 
tion  concerning  a  title  and  the  plaintiff  did  not  keep  up  the 
payments  during  the  time  the  litigation  was  in  progress,  the 
court  likewise  permitted  the  vendee  to  redeem  from  a  for- 
feiture of  the  contract.2  Where  the  plaintiff  paid  only  a 
portion  of  the  purchase  price  but  remained  in  possession  of 
the  property  and  made  valuable  improvements  for  eleven 
years,  and  paid  the  taxes,  the  court  permitted  the  defendant 
to  be  relieved  from  the  forfeiture  upon  condition  that  he  would 
pay  the  entire  purchase  price,  the  costs  of  the  action  plus 
fifty  dollars.3  Where  the  plaintiff  became  in  arrears  on  a 
land  contract  which  contained  a  clause  permitting  the  con- 
tract to  be  forfeited  for  nonpayment,  and  providing  that  time 
should  be  the  very  essence  of  the  contract,  the  court  permitted 
the  defendant  to  redeem  from  the  forfeiture  and  used  the  fol- 
lowing language : 

"The  fact  that  complainant's  rights  under  the  contract  were 
subject  to  forfeiture  at  law,  and  the  defendant's  entry  was 
lawful  does  not  finally  determine  the  rights  of  the  parties.  It 
is  the  province  of  the  court  of  equity  to  grant  relief  in  just 
such  cases."  4 

In  another  case  the  court  used  as  its  criterion  for  granting 
relief  from  the  forfeiture  that  it  would  be  unjust  and  oppres- 
sive to  allow  the  forfeiture  to  stand  and  would  work  no  injustice 
to  the  defendant  to  permit  a  redemption.6 

In  another  case  where  the  vendee  assigned  a  contract  which 
contained  a  provision  permitting  the  forfeiture  thereof,  upon 
assignment  the  court  relieved  the  vendee  from  the  forfeiture 
in  this  case  upon  the  principle  that  the  covenant  against  the 
assignment  was  for  the  purpose  of  permitting  the  vendor  to 
choose  his  own  tenant  and  that  this  object  was  not  interfered 
with  in  this  case.6    On  the  other  hand,  the  courts  have  in  a 

1.  Lozon  v.  McKay,  203  Mich.  364.  4.  John  v.  McNeal,  167  Mich.  148. 

2.  Bugaski  v.  Sinka,  200  Mich.  5.  Stickney  v.  Parmenter,  35 
418.                                                                   Mich.  237. 

3.  Cornell  v.  Norton,  188  Mich.  6.  McDonald  v.  Andrews,  199 
187.                                                                   Mich.  161. 


346 


THE  LAW  OF  LAND  CONTRACTS 


[§171 


number  of  instances7  sustained  a  forfeiture  of  contracts  where 
the  equity  of  the  vendee  in  the  contract  is  not  substantial  and 
to  permit  the  forfeiture  did  not  shock  the  sense  of  justice. 
As  previously  stated,  however,  the  practitioner  will  find  the 
statement  of  general  principles  of  very  little  value  in  relation 
to  cases  of  this  character  and  will  find  it  necessary  to  examine 
the  adjudicated  cases  in  order  to  determine  what  facts  have 
moved  the  court  to  withhold  or  grant  relief  from  forfeiture,  and 
for  that  reason  there  has  been  added  to  this  chapter  a  col- 
lection of  substantially  all  the  cases  involving  forfeiture  which 
have  ever  been  decided  by  the  Michigan  Supreme  Court.  See 
Sees.  174  to  182. 

§  172.  Forfeiture  of  Contract  for  Violation  of  Nonassign- 
ment  Clause. — Land  contracts  in  general  use  throughout  the 
state  usually  contain  a  provision  that  the  vendee  shall  not 
assign  the  contract  without  the  written  consent  of  the  vendor 
endorsed  upon  the  contract.    In  some  cases  such  clauses  con- 


7.  Towar  v.  Detroit  Trust  Com- 
pany, 19  Mich.  p.  670.  Where  the 
court  sustained  a  forfeiture  of  a 
contract  of  purchase,  the  amount 
paid  down  being  $1000.00  on  a  pur- 
chase price  of  $9700.00  and  the 
vendee  company  was  in  the  hands 
of  a  receiver. 

Donnelly  v.  Lyons,  173  Mich.  515. 
Where  the  sum  of  $1040.00  has  been 
paid  on  the  purchase  price  of  a 
property  and  the  vendee  was 
greatly  in  arrears  on  his  payments 
and  the  property  and  increased  very 
much  in  value. 

Mills  v.  Wm.  Drueke  Co.  172 
Mich.  394.  In  this  case  the  ven- 
dee under  a  land  contract  had  paid 
in  to  the  vendor  a  substantial 
amount  of  money  under  the  con- 
tract. Upon  default  the  vendor 
after  negotiation  exending  over  sev- 
eral weeks  endeavoring  to  secure 
the  money  due,  summary  proceed- 
ings were  taken  against  the  vendee 
and    the    vendor    obtained    posses- 


sion. After  a  lapse  of  about  a  year 
during  which  time  the  vendee  by 
reason  of  having  violated  the  crim- 
inal law,  was  unable  to  carry  out 
his  contract  with  the  vendor  to 
handle  the  vendor's  beer,  the  ven- 
dee brought  action  for  redemption 
of  the  property.  The  lower  court 
permitted  the  redemption  upon  the 
payment  of  a  certain  sum  of  money. 
The  supreme  court  set  aside  the 
decree  of  the  lower  court  and  dis- 
missed the  bill  of  complaint,  up- 
holding the  forfeiture  of  the  land 
contract. 

See  also  the  following  cases 
where  forfeiture  has  been  sus- 
tained. Murphy  v.  Mclntyre,  152 
Mich.  591;  Jones  v.  Bowling,  117 
Mich.  288;  Satterlee  v.  Cronkhite, 
114  Mich.  634;  Lowrie  v.  Gourlay, 
112  Mich.  641;  Truesdail  v.  Ward, 
24  Mich.  116;  Welling  v.  Stickland, 
161  Mich.  235;  Scott  v.  Sullivan, 
159   Mich.   297. 


§  172]  FORFEITURE  WHEN   SUSTAINED  347 

tain  a  provision  that  neither  the  contract  or  any  rights  there- 
under shall  be  assigned  without  the  written  consent  of  the 
vendor  on  the  contract.  As  such  contracts  usually  contain  a 
provision  permitting  a  forfeiture  of  the  contract  for  a  viola- 
tion of  its  terms  on  the  part  of  the  vendee,  the  question  is 
frequently  presented  to  the  profession,  "Will  such  clauses  pro- 
hibiting assignment  be  upheld  by  the  courts  ?"  Unfortunately 
the  law  in  its  present  development  will  not  permit  this  question 
to  be  answered  authoritatively.  In  Michigan  the  question  has 
never  been  squarely  before  the  court  and  the  decisions  of 
other  states  are  in  conflict. 

Where  this  question  has  been  presented  to  the  courts  they 
usually  find  some  other  ground  upon  which  to  decide  the  case, 
such  as  waiver,  oral  consent  or  estoppel.  From  the  Michigan 
decisions  as  they  now  stand,  the  following  rules  are  deducible . 

(a)  If  the  vendor  gives  a  verbal  consent  to  the  assignment 
he  is  thereby  estopped  from  forfeiting  the  contract  for  that 
cause.8 

(b)  If  the  vendor  accepts  payments  from  the  assignee  of 
the  vendee,  he  thereby  waives  the  right  to  declare  the  con- 
tract forfeited.9 

(c)  If  the  vendor  begins  an  action  to  foreclose  the  land  con- 
tract either  against  the  vendee  or  his  assigns,  he  thereby 
waives  any  previous  forfeiture.10 

(d)  Where  the  assignment  is  not  accompanied  by  a  change 
of  possession  or  ownership  but  is  made  only  for  the  purpose 
of  placing  the  contract  on  record,  the  assignment  clause  is  not 
violated.11 

(e)  As  to  leases,  it  has  been  held  that  the  relation  between 
the  landlord  and  tenant  is  of  a  personal  nature  and  the  courts 
have  therefore  upheld  the  forfeiture  upon  the  violation  of  the 
nonassignment  clause  in  the  lease.18 

8.  Old  Second  Hall  Bank  v.  Sav-  11.  MacDonald    v.    Andrews,    199 
ings  Bank,  115  Mich.  533;  Moday  v.      Mich.  161. 

Roth,   150   Mich.   290;    John  v.   Mc-  12.  Lewis  v.  Sheldon,  103  Mich.; 

Neal,   167-151.     Bugajski  v.   Swiko,      Fray    v.    Austin    Machinery    Com- 
200   Mich.   415.  pany,    140    Mich.    452.      Randall    v. 

n    _         ,.    ..         .  „  Chubb,  46  Mich.  311.  Plaintiff  seeks 

9.  See  citations  in  note  8,  supra. 

to  recover  possession  by  summary 

10.  See  citations  in  note  8,  supra.      proceedings.  Plaintiff  leased  to  one 


348 


THE  LAW  OF  LAND  CONTRACTS 


[§172 


(f )  If  the  vendor  leads  the  vendee  to  believe  that  he  will 
not  object  to  the  assignment,  he  would  of  course,  be  thereby 
estopped  from  the  forfeiture  of  the  contract,  under  the  general 
principles  of  the  law  of  estoppel. 

(g)  In  short  if  the  vendor  does  anything  indicating  that  he 
relies  upon  the  existence  of  the  contract  after  default  in  its 
conditions  by  the  vendee,  the  court  will  refuse  to  sustain  a 
forfeiture  of  the  contract. 

(h)  The  forfeiture  clause  in  a  contract  is  strictly  construed 
and  unless  the  act  done  by  the  vendee  is  brought  squarely 
within  its  terms,  a  forfeiture  will  not  be  sustained.13 


Stoddard,  a  farm  on  which  Stod- 
dard was  to  do  all  the  work  and 
care  for  the  tools,  repairing  them 
at  his  expense.  Stoddard  attempted 
to  assign  this  lease  to  Randall,  the 
plaintiff  in  error.  Held:  Lease 
personal  and  not  assignable  with- 
out consent  of  lessor.  The  amount 
of  product  would  depend  to  a  great 
extent  upon  the  personal  skill  of 
the  husbandman  and  an  attempt  to 
deprive  landlord  of  right  to  select 
him  forfeits  the  lease.  Plaintiff 
given  immediate  possession.  Note: 
No  express  covenant.  Clear  per- 
sonal relation  in  lease. 

Marvin  v.  Hartz,  130  Mich.  26. 
Plaintiff  seeks  by  summary  pro- 
ceedings to  regain  possession  of 
premises.  Plaintiff  leased  premises, 
lease  containing  covenant  by  lessee 
not  to  sublet  or  assign  any  part  of 
premises  without  written  consent 
of  lessor.  Lease  was  assigned  to 
defendant  without  consent  of  plain- 
tiff. Held:  The  clause  in  the  lease 
which  provided  for  forfeiture  when 
the  clause  in  regard  to  assignment 
should  be  violated  may  be  strictly 
enforced.  Plaintiff  may  obtain  pos- 
session. Note:  This  a  lease  with 
express  covenant. 


Contracts    Without    Restrictive 

Clauses  Against  Assignment 

Are  Transferable. 

13.  A  vendee  under  an  executory 
contract  for  the  purchase  of  land, 
obtains,  by  virtue  of  his  contract, 
such  an  interest  therein,  as  ena- 
bles him,  prior  to  a  full  perform- 
ance on  his  part,  to  assign  same, 
and  his  assignee  on  the  payment 
of  the  unpaid  balance  of  the  pur- 
chase money  may  require  the  ven- 
dor to  make  a  conveyance  to  him 
thereof.  Lenman  v.  Jones,  222  U. 
S.  51,  56  L.  Ed.  89;  Simmon  v.  Zim- 
merman, 144  Cal.  256,  79  Pac.  451, 
1  Anno.  Cases  850;  Robinson  & 
Perry,  21  Ga.  183,  68  Anno.  Dec. 
455;  Cowart  v.  Singletary,  79  S.  E. 
196,  140  Anno.  435,  47  L.  Ra.  (N.  S.) 
621;  More  v.  Gariglietti,  87  N.  E. 
826,  228  111.  143,  10  Anno.  Cases  560; 
Churchill  v.  Morse  23  Iowa  229,  92 
Anno.  Dec.  560;  McGreggor  v.  Put- 
ney, 75  N.  H.  113,  71  Atl.  226;  Anno. 
Cases  1912  A  198. 

Clauses  against  the  assignment 
of  land  contracts  will  be  strictly 
construed  and  subletting  the  prem- 
ises does  not  constitute  such  an 
assignment.  Joy  v.  Stevenson,  128 
Pac.  751;  Am.  &  Eng.  Enc.  Law,  2d 
Ed.,  p.  659-680. 


§172] 


FORFEITURE  WHEN   SUSTAINED 


349 


If  the  vendor  has  been  guilty  of  any  breaches  of  the  con- 
tract a  forfeiture  thereof  will  not  be  sustained,  as  he  who  com- 
mits the  first  substantial  breach  of  the  contract  is  thereby 
estopped  from  enforcing  the  contract,  if  the  other  party 
thereto  desires  to  rely  on  such  breach.14 

None  of  the  Michigan  decisions  decide  the  question  squarely 
as  to  what  the  courts  will  do  with  the  nonassignment  clause 
of  a  land  contract  where  there  is  no  question  of  waiver,  oral 
consent  or  estoppel  involved  in  the  assignment,  and  in  other 
states  there  is  a  decided  conflict  in  the  authorities,  some  courts 
holding  such  clauses  void  as  against  public  policy  because 
of  being  a  restraint  on  the  alienation  of  real  property.16  Others 


14.  Jones  v.  Berkey,  181  Mich. 
476. 

Clauses   Against    Assignment    Held 
Void  as  Against  Public  Policy. 

15.  Griggs  v.  Landis,  21  N.  J.  E.  O. 
495.  This  was  a  bill  for  specific 
performance  filed  by  an  assignee  of 
the  vendee,  to  compel  the  convey- 
ance of  property  sold  under  a  land 
contract,  which  contained  a  cove- 
nant providing  that  the  vendee 
should  not  have  the  right  to  as- 
sign the  contract  before  certain 
improvements  were  installed  in  the 
premises  which  the  vendee  had 
contracted  to  install.  The  vendee 
assigned  such  contract  before  all 
the  improvements  were  completed 
but  his  assignee  completed  same, 
but  not  strictly  within  the  time  pre- 
scribed in  the  contract.  Held: 
Clause  against  nonassignment  of 
the  contract  void  as  against  public 
policy. 

Said  the  court  further  in  Griggs 
v.  Landis:  "But  I  apprehend  such 
collateral  covenant  will  never  be 
thus  enforced,  where  it  appears 
upon  the  face  of  the  contract  that 
the  prohibition  to  assign  is  not  the 
main  purpose  of  the  covenant,  but 


a  mere  incident  to  and  security 
for  such  purpose.  It  is  the  province 
of  a  court  of  equity  to  ascertain 
what  is,  in  truth,  the  real  inten- 
tion of  the  parties,  and  to  carry 
that  into  effect,"  and  again,  "That 
the  restriction  is  in  the  nature  of 
a  mere  security  for  the  perform- 
ance of  the  principal  covenants, 
and  such  relief  may  be  given  by  a 
court  of  equity  as  shall  appear  to 
be  equitable  under  the  circum- 
stances of  each  particular  case," 
and  again,  the  court  goes  a  step 
further  in  what  is  indirectly  a  re- 
pudiation of  such  a  restriction, 
when  it  says:  "Penalties,  forfeit- 
ures and  re-entries  for  conditions 
broken  are  not  favored  in  equity, 
and  constitute  a  large  branch  of 
equitable  relief.  Usually,  they  are 
held  to  be  securities  for  the  pay- 
ment of  money,  and  the  perform 
ance  of  conditions,  and  where  com- 
pensations can  be  made  for  non- 
payment  and  nonperformance, 
equity  will  relieve  against  the  rigid 
enforcement  of  the  contract.  This 
is  upon  the  general  principle  that 
a  court  of  equity  is  a  court  of  con- 
science, and  will  permit  nothing  to 


350 


THE  LAW  OF  LAND  CONTRACTS 


[§172 


be     done     within     its     jurisdiction 
which  is  unconscionable." 

Johnson  v.  Eklund,  72  Minn.  195, 
court  said:  There  is  nothing  per- 
sonal in  the  nature  of  the  contract. 
All  that  the  vendor  was  interested 
in  was  the  payment  of  the  purchase 
money  at  maturity.  If  he  received 
this,  it  was  wholly  immaterial  to 
him  who  paid  the  money  or  who 
got  the  land.  'At  most  this  stipu- 
lation against  an  assignment  is 
merely  collateral  to  the  main  pur- 
pose of  the  contract  designed  as 
a  means  of  securing  and  enforc- 
ing performance  of  what  was  un- 
dertaken by  the  vendee,  to-wit,  the 
prompt  payment  of  the  purchase 
money.  When  the  vendor  has  re- 
ceived all  his  purchase  money,  he 
has  received  all  that  he  is  entitled 
to,  and  all  that  the  provision 
against  an  assignment  was  intended 
to  secure. 

A  transfer  made  in  due  course  of 
the  administration  of  -the  estate 
of  the  vendee  to  raise  money  to 
pay  the  expenses  of  administration 
is  not  a  violation  of  a  provision 
prohibiting  assignment  without  the 
consent  of  the  vendor.  Avile  v. 
Pereira,  120  Cal.  589,  52  Pac.  840. 

Cheney  v.  Bilby,  74  Fed.  52.  The 
court  said:  "This  provision  of  the 
contract  was  obviously  intended  to 
prevent  the  assignment  of  the 
same,  while  it  was  executory  to 
persons  who  might  not  be  able  or 
well  disposed  to  faithfully  execute 
it.  It  was  a  provision  which  was 
inserted  in  the  agreement  to  enable 
Cheney,  the  vendor,  to  control  the 
selection  of  an  assignee  thereof, 
so  long  as  the  agreement  remained 
in  part  unperformed,  or  so  long 
as  he  was  interested  in  the  choice 
of  an  assignee  who  had  the  requi- 
site means  and  ability  to  do  what 


remained   to   be    done.      Inasmuch, 
then,  as  the   provision  in  question 
was    only    intended    to    secure    the 
faithful  performance  of  the  agree- 
ment by  the  purchaser  or  his  as- 
signee, it  would  be  both  unreason- 
able  and   inequitable   to   hold   that 
Cheney,   the    vendor,    is   privileged 
to  take  advantage  of  the  provision, 
to  avoid  performance  on  his  part, 
after  the  entire  amount  of  the  pur- 
chase   money    has    been    promptly 
paid    or    tendered.      We    must    as- 
sume whatever  may  be  the  fact  in 
this     regard,     that     the     provision 
against  assigning  the  contract  with- 
out  the   vendor's    consent   was   in- 
serted  therein   for   an   honest   and 
legitimate  purpose;   that  is  to  say, 
for    the    purpose    of    securing    the 
punctual  payment  of  the  purchase 
money,  and  a  full  compliance  with 
other  executory  agreements,  either 
by  the  original  purchaser  or  by  his 
assignee.     Therefore,   when   it   ap- 
pears that  that  object  has  been  ac- 
complished,     that      the      purchase 
money  has  been  promptly  paid  or 
tendered,   nothing   remained   to   be 
done     but     to     execute     a     deed 
to     the      purchaser,      the     vendor 
cannot     be     heard     to     allege     as 
an   excuse   for  not  making   a   con- 
veyance, that  at  a  certain  time  the 
purchaser  of  the  land  assigned  the 
contract    of    purchase    without   his 
consent.     It  would  be  trifling  with 
justice    to    tolerate    a    defense    of 
that  character  after  the  purchaser's 
engagements   have  each   been  per- 
formed   in    the    time    and    manner 
stipulated  in  the  contract  of  sale." 
Some    of   the   cases,   however,   not 
only  recognize  the  validity  of  the 
stipulation   but   insist   on  a   literal 
enforcement  thereof  and  hold  that 
an  assignee  of  the  vendee,  in  the 
absence  of  acts  or  circumstances, 


§172] 


FORFEITURE  WHEN   SUSTAINED 


.'Ml 


holding  and  perhaps  by  the  weight  of  authority  that  such  a 
clause  is  valid  on  the  theory  the  parties  have  the  right  to  enter 
into  such  a  contract  if  they  so  desire.16 


constituting  an  estoppel  or  waiver, 
acquires  no  rights  which  he  can 
enforce  against  the  vendor.  Hun- 
ter Tract  Imp.  Co.  v.  Stone,  58 
Wash.  661. 

It  has  been  held  that  an  assign- 
ment as  collateral  security  of  a 
contract  for  the  sale  of  land,  by 
the  vendee,  does  not  violate  a  stipu- 
lation in  the  contract  prohibiting 
assignment.  Badger  Lbr.  Co.  v. 
Parker,  85  Kan.  134,  116  Pac.  242, 
35  L.  R.  A.   (N.  S.)    901. 

Clauses  Against  Assignment  of  Con- 
tract Upheld  by  the  Court 

16.  Lockerby  v.  Amon,  et  al.,  64 
Wash.  24.  The  court  said:  "It  is 
not  denied  that  stipulations  of  the 
character  relied  on  in  this  case 
are  lawful  and  binding  upon  the 
parties.  Hunter  Tract  Imp.  Co.  v 
Stone,  58  Wash.  661,  109  Pac.  112. 
However,  an  engaging  argument  is 
made  by  appellant  upon  the  theory 
that,  although  the  parties  had  a 
right  to  so  contract,  the  restrictive 
clause  has  performed  its  office,  that 
is,  it  being  designed  only  to  in- 
sure payment  of  the  purchase 
price,  and  that  being  tendered, 
there  can  be  no  reason  for  with- 
holding the  deed;  and  generally 
that,  inasmuch  as  Swingle  might 
have  tendered  and  received  a  deed, 
and  thereafter  immediately  con- 
veyed to  Johnson,  equity,  inasmuch 
as  it  regards  substance  rather  than 
form,  will  compel  the  execution  of 
a  deed  to  the  assignee.  These 
arguments  are  not  new  and  find 
some  support  in  the  authorities; 
but  they  have  been  rejected  by  a 


majority  of  the  courts."  (The  court 
evidently  refers  to  the  validity  of 
the  restriction  in  contracts  gener- 
ally). "The  privilege  of  selecting 
a  grantee  is  an  incident  of  owner- 
ship, and  we  cannot  presume,  as 
did  the  Supreme  Court  of  Minne- 
sota, that  'at  most  this  stipula- 
tion against  an  assignment  is 
merely  collateral  to  the  main  pur- 
pose of  the  contract,  designed  as 
a  means  of  securing  and  enforc- 
ing payment  of  what  was  under- 
taken by  the  vendor,  to-wit:  the 
prompt  payment  of  the  purchase 
money.  When  the  vendor  has  re 
ceived  all  his  purchase-money,  he 
has  received  all  he  is  entitled  to, 
and  all  that  the  provision  against 
the  assignment  was  intended  to  se- 
cure.' Johnson  v.  Eklund,  72  Minn. 
195,   75  N.  W.   14. 

"While  this  reasoning  is  entitled 
to  consideration  we  cannot  accept 
it  as  the  end  of  the  law.  A  ven- 
dor may  have  confidence  that  his 
vendee  will  not  use  the  property  to 
his  disadvantage.  It  is  his  privi- 
lege to  decline  to  deal  with  strang- 
ers, or,  he  may,  by  limiting  the 
right  of  assignment,  save  any  ques- 
tion as  to  the  interest  of  interven- 
ing third  parties,  a  result  not  al- 
together unlikely  under  our  com- 
munity property  system.  Or  he 
may  be  unwilling  to  assume  to 
pass  upon  the  legal  sufficiency  of 
an  assignment.  The  better  rule 
is  stated  in  Omaha  v.  Standard 
Oil  Company,  55  Neb.  337,  75  N. 
W.  859.  See  also,  Monographic 
Notes,  88  Am.  State  Rep.  201;  Muel- 


352 


THE  LAW  OF  LAND  CONTRACTS 


[§172 


In  examining  the  decisions  appended  in  the  note,  it  should  not 
be  overlooked  that  some  states,  like  Indiana,  have  adopted  the 
doctrine  permitting  a  strict  forfeiture  of  land  contracts  with- 
out any  relief  by  way  of  redemption  regardless  of  what  the 
vendee  may  have  paid  under  the  contract.  Such  decisions  are 
of  doubtful  authority  in  Michigan  where  the  courts  have  gone 


ler  v.  Northwestern  University, 
195  111.  236,  63  N.  E.  110,  4  Cyc.  20. 
"Whatever  may  have  been  the  rea- 
sons for  reserving  the  right  to  de- 
cline to  deal  with  an  assignee,  such 
reservation  contravenes  no  rule  of 
public  policy,  and  is  enforceable." 

In  Martin  v.  Smith,  94  Ore.  132, 
the  contract  therein  passed  upon 
provided  as  a  condition  that:  "He 
will  not  assign  or  transfer  this 
contract,  nor  deliver  the  posses- 
sion of  said  premises  to  any  per- 
son or  persons  whomsoever  with- 
out the  consent  in  writing  of  the 
said  first  party."  The  defeasance 
clause  also  states,  "or  in  case  the 
said  party  of  the  second  part  shall 
fail  or  refuse  to  comply  with  all 
or  any  of  the  conditions,  or  agree- 
ments herein  contained  and  by  him 
to  be  performed,  then  and  in  such 
event  this  contract  shall  be  void 
and  thereupon  said  first  party  shall 
be  entitled  to  the  immediate  pos- 
session of  said  premises."  All  pay- 
ments were  to  be  forfeited  in  case 
of  such  default  and  considered  as 
rent  for  the  use  of  the  premises. 
The  court  said:  "A  contract  may 
be  defined  to  be  an  agreement  be- 
tween two  or  more  parties  com- 
petent to  contract,  upon  a  suffi- 
cient consideration,  to  do  or  not  to 
do  a  particular  thing  which  law- 
fully may  be  done  or  omitted. 
Hence  the  parties  could  provide 
that  the  contract  should  not  be  as- 
signed without  the  written  consent 


of  one  of  them.     There  is  nothing 
unlawful  or  contrary  to  public  pol- 
icy in  such  a  stipulation  and  under 
proper  conditions  the  same  may  be 
enforced.       There     are     instances 
where  the  personal  qualities  of  one 
of  the  parties  form  an  element  of 
the  agreement,   as  where  the   per- 
sonal   services    of    a    physician    or 
of  an  actor,  or  a  tenant  for  a  cer- 
tain   share    of   crops    as    rent,    are 
involved.      There   by   operation   of 
law  the  contract  is  not  assignable 
without    the    consent    of    the    em- 
ployer.     It   is    eqaully    permissible 
for  the  parties  to  append  the  same 
condition   by    express   contract,   so 
that  the  inhibition   against  assign- 
ment   arises    from    their    covenant 
rather    than    by    operation    of   law. 
For  instance,  in  Behrens  v.  Cloudy, 
50  Wash.  400,  97  Pac.  450,  a  lease 
contained   covenants   of  the   lessor 
to   sell   the   land   to   the   lessee   in 
eight  months  at  the  latter's  option, 
and  also  the  covenant  of  the  lessee 
not  to  assign  any  part  of  the  lease. 
The  plaintiff  had  taken  an  assign- 
ment of  the  option  without  a  writ- 
ten consent  as  required  by  the  con- 
tract, and   sued  to  compel   specific 
performance.     The  court  held  that 
the    covenant    against    the    assign- 
ment was  lawful  and  that  the  pur- 
chaser without  written  consent  ac- 
quired no  rights.    In  another  Wash- 
ington   case,    Bond-Foster    Lumber 
Co.  v.  Northern  Pac.  R.  R.  Co.,  53 
Wash.  302,  101  Pac.  877,  it  is  laid 
down  as  a  rule  that:   'One  who  ac- 


§  173] 


FORFEITURE  WHEN   SUSTAINED 


353 


so  far  in  relieving  the  vendee  from  forfeiture  in  cases  where 
the  equities  are  strongly  in  his  favor.  Additional  discussion 
as  to  the  soundness  of  these  conflicting  doctrines  may  be  found 
in  the  following  section. 

§  173.  Same  Subject  Continued. — Those  courts  which  have 
sustained  the  validity  of  these  nonassignment  clauses  have 
usually  based  their  decisions  upon  one  or  more  of  the  following 
reasons : 

1.  That  the  parties  to  a  contract  have  the  right  to  make 
any  contract  they  desire,  so  long  as  such  contract  is  not  against 
public  policy;  that  nonassignment  clauses  of  the  character 
under  consideration  here  violate  no  principle  of  public  policy. 

2.  That  the  vendor  ought  to  have  the  right  to  select  his 
vendee,  as  one  vendee  might  be  more  desirable  than  another 
by  reason  of  his  financial  situation,  punctuality  or  ability  to 
perform  and  carry  out  the  agreement. 

In  considering  the  main  question  involved  in  this  discussion, 
it  is  well  to  bear  in  mind  that  the  following  legal  propositions 
have  been  settled  in  this  state : 


cepts  assignment  of  a  contract 
which  by  express  terms  is  made 
nonassignable  acquires  only  a 
cause  of  action  against  the  as- 
signor.' See  also,  Burck  v.  Tay- 
lor, 152  U.  S.  634,  38  Law  Ed.  578; 
see  also,  Roses  U.  S.  Notes;  Tabler 
v.  Sheffield  Land  Co.,  79  Ala.  377, 
58  Am.  Rep.  593;  Deffenbaugh  v 
Foster,  40  Ind.  382;  Andrew  v. 
Meyerdirck,  87  Md.  511,  40  Atl.  173; 
City  of  Omaha  v.  Standard  Oil  Co., 
55  Neb.  337,  75  N.  W.  859;  Zetter- 
lund  v.  Texas  L.  &  C.  Co.,  55  Neb. 
355,  75  N.  W.  860." 

In  the  instance  case,  however, 
the  court  decided  in  favor  of  the 
defendant,  holding  there  had  been 
a  waiver  of  the  stipulation  not  to 
assign.  The  court  saying:  "In  such 
contracts  as  the  one  we  have  be- 
fore us,  the  provision  against  as- 
signment   without    the    consent    of 


the  seller  is  made  for  his  benefit 
and,  like  all  other  privisions  in 
favor  of  a  party,  he  may  waive  it 
if  he  chooses.  Such  waiver  may 
be  proved  by  parol  and  by  circum- 
stantial evidence,  as  well  as  by  di- 
rect testimony." 

In  Olcott  v.  Hermans,  10  New 
York  Supreme  Court  Rep.  436  (3 
Hun.  436),  the  court  said:  "The 
provision  in  a  contract  for  the  sale 
of  land,  that  it  shall  become  void 
if  assigned  without  the  consent  of 
the  vendor  in  writing,  is  valid  and 
binding,  and  the  assignment  with- 
out consent,  renders  the  contract 
void  as  against  the  vendor.  But 
it  may  be  waived  and  is  waived  if 
the  vendor  with  notice  of  the  as- 
signment, accepts  the  purchase 
money  from  the  assignee." 


354  THE  LAW  OF  LAND  CONTRACTS  [§  173 

The  vendee  is  the  equitable  owner  of  the  real  estate  under  a 
land  contract,  while  the  interest  of  the  vendor  is  held  to  be 
personal  property  and  his  reservation  of  title  is  only  by  way 
of  security,  the  vendor's  interests  being  so  closely  analogous 
to  the  interest  of  the  mortgagee  under  a  mortgage,  that  sub- 
stantially the  same  procedure  is  followed  in  foreclosing  both 
classes  of  liens.17  Both  mortgagor  and  vendee  are  entitled  to 
the  possession  and  beneficial  enjoyment  of  the  property.  If 
such  nonassignment  clause  should  be  upheld  as  between  ven- 
dor and  vendee,  it  ought  to  be  upheld  between  the  mortgagor 
and  mortgagee,  as  the  two  classes  of  securities  are  executed 
for  the  same  purpose,  accomplishing  the  same  result,  namely, 
securing  in  one  instance  the  payments  which  may  be  due  and 
may  bcome  due  the  vendor ;  the  other  similar  payments  to  the 
mortgagee.  That  such  restrictive  covenants  in  mortgages 
would  not  be  upheld  by  the  courts  is  too  plain  for  argument. 

Apparently  the  strongest  argument  advanced  in  favor  of 
upholding  the  nonassignment  clause  in  a  land  contract,  is 
that  the  vendor  has  a  right  to  select  his  vendee  by  reason  of 
the  fact  that  one  vendee  may  be  more  desirable  than  another 
because  of  his  financial  situation,  honesty,  punctuality  or 
ability  to  perform  and  carry  out  the  agreement.  This  argu- 
ment, however,  falls  to  the  ground  when  it  is  considered  that  in 
Michigan  the  assignment  of  a  land  contract  by  the  vendee 
does  not  release  such  vendee  from  his  obligation  to  see  that  all 
the  terms  of  such  land  contract  are  fulfilled  and  carried  out. 
Therefore,  where  the  vendee  assigns  the  contract  the  vendor 
surrenders  no  right  to  proceed  against  the  vendee  which  he 
already  has.18    And  if  anything,  his  security  in  the  contract 

17.  Sec.  11  Ante;  Fitzhugh  v.  Max-  closed  in  much  the  same  manner, 

well,  34  Mich.  138;  Midland  County  Meigs  v.  McFarlane,  72  Mich.  194. 

Savings  Bank  v.  Prouty,  158  Mich.  18    where    the    vendee    assigned 

656;  Harris  v.  Brown,  172  Mich.  164.  tiie  contract  with  the  written  con- 

The    interest    of    vendor    is    per-  sent  of  the  vendor  endorsed  there- 

sonal  property.     Bowen  v.  Lansing,  0n,  the  court  held  that  the  vendee 

129    Mich.    119-121;     City    of    Mar-  was  not  released   from   the   coven- 

quette  v.  Iron  Co.,  132  Mich.  130.  ants  in  contract.     Foley  v.  Dwyer, 

Interest  of  vendor  and  vendee  Is  122  Mich.  591;  Wuneman  v.  Phillips, 

like   that   of  mortgagor  and   mort-  93    Mich.    223;    Barley   v.   Wells,    8 

gagee    and    vendor's    lien    is    fore-  Wis.  141,  76  Am.  Dec.   233. 


§  173]  FORFEITURE  WHEN  SUSTAINED  355 

is  strengthened  and  enhanced  by  reason  of  the  fact  that  he  has 
an  additional  party  interested  in  the  person  of  the  assignee  of 
the  vendee  in  seeing  that  the  payments  on  the  contract  are 
kept  up  and  the  terms  of  such  contract  fulfilled.  If  it  be 
argued  that  the  vendor  by  reason  of  such  clause  controls  who 
shall  have  possession  of  the  premises,  the  answer  is  that  such 
nonassignment  clause  does  not  prevent  the  vendee  from  sub- 
letting the  premises  so  that  the  vendor  in  any  event  has  no 
direct  control  by  reason  of  such  nonassignment  clauses  over 
the  occupancy  of  the  premises,  and  it  should  further  be  noted 
that  apparently  it  is  the  view  of  the  Michigan  Supreme 
Court  that  the  vendee  in  a  land  contract  has  such  an  interest 
in  the  real  estate  as  will  enable  him  to  sell  and  convey  the 
same  in  spite  of  the  nonassignment  clause  prohibiting  the  as- 
signment of  the  contract  itself,  the  court  drawing  a  distinc- 
tion between  a  sale  of  the  equitable  title  to  the  property  held 
by  the  vendee  and  an  assignment  of  the  contract  itself.19  It 
will,  therefore,  be  seen  that  the  nonassignment  clause  under 
consideration  confers  upon  the  vendor  no  real  protection,  but 
does  give  him  a  right  which  is  usually  exercised  against  the 
vendee  contrary  to  sound  principles  of  public  policy. 

In  those  decisions  sustaining  the  forfeiture  of  contracts  for 
the  violation  of  the  nonassignment  clause,  the  question  of 
whether  or  not  such  clauses  in  actual  transactions  between  the 
vendor  and  vendee  operates  against  public  policy,  does  not  seem 
to  have  been  examined  or  raised  in  the  cases  considered,  the 
court  merely  contenting  itself  with  the  statement  that  such 
clauses  were  not  against  public  policy,  without  scrutinizing 
their  actual  operation. 

In  examining  this  question  it  should  be  borne  in  mind  that 
the  restraints  against  alienation  of  real  property  are  not 
favored  in  law  and  are  generally  held  to  be  against  public  policy 
if  even  for  a  limited  time.20    In  what  way  does  the  restraint  in 

19.  The  vendees  in  a  land  con-  without  the  consent  of  the  vendor, 
tract  have  an  equitable  interest  in  Coulter  v.  Lovinger,  212  Mich.  272. 
real  estate  and  they  have  the  right  20.  Restraints  against  the  aliena- 
to  sell  and  convey  the  same,  not-  tion  of  real  property  are  not  fa- 
withstanding  a  provision  in  their  vored  in  law.  Mendelsohn  v.  Mc- 
contract  that  they  cannot  assign  it  Donald,  29  Mich.  96. 


356  THE  LAW  OF  LAND  CONTRACTS  [§  173 

land  contracts  under  discussion  operate  against  public  policy? 
Public  policy  has  been  defined  by  a  well  known  authority  to  be 
"that  principle  of  law  which  holds  that  no  person  can  lawfully 
do  that  which  has  a  tendency  to  be  injurious  to  the  public  or 
against  the  public."21  It  has  been  the  observation  of  the  writer 
that  the  nonassignment  clause  is  used  almost  invariably  in  a 
manner  "injurious  to  the  public,"  by  exacting  from  the  vendee 
a  consideration  for  permitting  the  transfer  which  the  vendor 
has  in  no  wise  earned.  By  reason  of  such  nonassignment 
clause  in  the  contract,  the  vendor  can  and  does  very  frequently 
say  in  effect  to  the  vendee,  "Pay  me  a  large  sum  of  money  or 
give  me  a  consideration  which  I  have  not  earned  and  I  will 
consent  to  the  assignment  of  the  contract."  Sometimes  this 
consideration  consists  of  compelling  the  vendee  to  pay  the  en- 
tire purchase  price,  whereas  under  the  contract  he  was  entitled 
to  make  his  payments  my  monthly  installments  over  a  long 
period  of  years,  and  other  times  the  consideration  exacted  is  a 
lump  sum  payment;  in  other  cases  increase  of  the  payments 
are  exacted,  but  whatever  the  consideration  may  be  it  is  noth- 
ing more  or  less  than  a  penalty,  regardless  of  name,  exacted 
from  the  vendee  without  any  real  consideration  passing  to  him. 
The  penalties  and  forfeitures  are  hateful  to  the  law  of  Michi- 
gan and  perhaps  more  so  than  to  most  states,  is  well  known  to 
the  profession.22 

Our  courts  have  not  hesitated  to  hold  as  void  against  public 
policy  provisions  providing  for  attorney's  fees,  in  notes,  in 
mortgage  and  penalties  of  various  sorts  in  contracts  and  we 
are  constrained  to  feel  that  the  same  principle  should  be 
adopted  with  reference  to  the  clauses  under  consideration  in 
this  section. 

§  174.  Forfeiture  Not  Sustained,  Illustrative  Cases. — Case 

of  Lozon  v.  McKay,  203  Mich.  365. 

Plaintiff  and  defendant  in  this  case  entered  into  a  land  con- 
tract whereby  the  plaintiff  agreed  to  purchase  said  real  estate 
for  the  sum  of  $1850.00,  payable  $1050.00  in  cash,  $200.00  on 
April  4,  1916;  $100.00  on  April  4,  1917;  $100.00  on  April  4. 

21.  Definition,    of    public    policy,  22.  See  Sec.  145  ante. 

33  Cyc.  125. 


§175| 


FORFEITURE  WHEN   SUSTAINED  357 


1918,  and  $400.00  on  April  4,  1919,  together  with  interest  at 
the  rate  of  six  per  cent,  per  annum,  and  also  all  taxes  and 
assessments.  Plaintiff  paid  first  payment,  made  improvements 
on  the  place,  by  way  of  sheds  and  foundations  to  the  value  of 
$1300.00  paid  one  installment  of  interest  in  November,  1914, 
paid  the  taxes  for  1914,  1915,  but  did  not  pay  them  for  1916, 
and  became  in  arrears  on  the  principal  of  said  contract  for  more 
than  ninety  days  to  the  extent  of  $200.00.  In  July,  1916,  the 
defendant  served  a  notice  of  forfeiture  on  the  plaintiff.  The 
plaintiff  filed  a  bill  for  specific  performance.  The  lower  court 
entered  a  decree  dismissing  the  bill  of  complaint  and  upholding 
the  forfeiture. 

Upon  appeal  to  the  Supreme  Court  the  lower  court  was  re- 
versed, and  this  notwithstanding  the  fact  that  no  tender  of  the 
amount  due  on  the  contract  was  made  before  filing  suit,  nor 
was  the  amount  due  paid  in  the  court;  the  bill  of  complaint 
in  this  case  asked  that  a  decree  for  specific  performance  be 
made  but  did  not  ask  that  the  plaintiff  be  given  relief  from  the 
forfeiture  except  by  implication.  In  handing  down  its  deci- 
sion in  this  case  the  court  used  the  following  language : 

"Treating  the  bill  as  amended  so  as  to  ask  for  relief  from  the 
forfeiture,  and  extending  to  their  limits  the  rules  governing 
the  granting  of  relief  in  such  cases,  the  decree  below  may  be 
modified  so  as  to  relieve  plaintiff  from  the  forfeiture  upon  con- 
dition that  within  sixty  days  after  the  entry  of  decree  in  this 
court  they  pay  to  defendant,  or  to  the  register  of  the  Circuit 
Court  for  the  County  of  Ogemaw,  the  unpaid  purchase  price 
of  the  land,  with  all  arrearages  of  interest  and  any  sum  paid 
by  defendant  for  taxes  upon  the  land,  with  costs  of  both 
courts,  upon  which  payment  defendant  shall  execute  and  de- 
liver a  conveyance  in  accordance  with  the  contract ;  in  default 
of  which  payment  defendant  shall  have  the  relief  granted  him 
in  the  court  below  with  costs  of  both  courts." 

§  175.  Relief  From  Forfeiture  Granted,  Illustrative  Cases  — 

Bugaski  v.  Siwka,  200  Mich.  415. 

The  plaintiff  brought  this  action  to  recover  damages  from 
the  breach  of  a  land  contract.  Plaintiff  was  vendee  in  a  con- 
tract executed  with  defendant;  as  vendee  he  made  certain 
payments  under  the  terms  of  the  contract  but  later  a  question 


358  THE  LAW  OF  LAND  CONTRACTS  [§  175 

came  up  as  to  the  defendant's  title  to  the  property.  During 
the  pendence  of  the  litigation  concerning  title  the  plaintiff  did 
not  keep  up  the  payments,  the  time  for  payment  being  orally 
extended  by  the  defendant.  Title  was  finally  held  by  the  court 
not  to  be  in  defendant  at  all  but  in  a  third  party.  So  plaintiff 
was  compelled  to  give  up  the  premises.  The  defense  to  this 
action  is  based  on  the  theory  that  plaintiff  had  forfeited  all  his 
rights  under  the  contract  by  not  keeping  up  the  payments. 

The  court  held  that  the  plaintiff  had  not  forfeited  his 
rights.  By  the  decree  of  the  court  the  defendant's  title  was 
extinguished  and  plaintiff  was  excused  from  tendering  pay- 
ment. Defendant  not  being  in  a  position  to  perform,  it  was 
unnecessary  for  plaintiff  to  tender  payment.  Plaintiff  can 
recover  damages  in  this  case. 

Cornell  v.  Norton,  188  Mich.  187.  Plaintiff  was  vendee 
under  a  land  contract.  He  entered  into  possession  and  paid 
the  taxes  which  it  was  the  duty  of  the  vendor  to  pay.  He 
remained  in  possession  for  eleven  years  and  made  valuable 
improvements  on  the  land  but  never  paid  any  on  the  purchase 
price.  Defendant  after  this  long  length  of  time  declared  the 
contract  forfeited  for  nonpayment  and  plaintiff  brings  this 
action  to  be  relieved  against  the  forfeiture  and  offering  to  pay 
the  purchase  price  now. 

The  court  held  that  plaintiff  would  be  granted  relief  against 
the  forfeiture  if  he  would  pay  the  purchase  price,  the  amount 
of  the  costs  in  this  suit  and  also  the  costs,  plus  fifty  dollars,  of 
the  ejectment  suit  which  defendant  had  brought  against  him. 
Plaintiff  being  allowed  to  deduct  the  amount  of  the  taxes 
he  had  paid. 

John  v.  McNeal,  167  Mich.  148.  Plaintiff  filed  this  bill  to 
compel  specific  performance  of  a  land  contract  and  to  be 
granted  relief  from  a  forfeiture  declared  by  the  defendant. 
Plaintiff  purchased  certain  property  from  defendant  on  a  land 
contract.  He  became  delinquent  in  his  payments  thereon  and 
plaintiff  entered  into  possession  and  conveyed  the  premises 
to  another. 

This  court  held  that  the  plaintiff  was  entitled  to  relief  in 
this  instance.  The  fact  that  plaintiff's  rights  under  the  con- 
tract were  subject  to  forfeiture  at  law  does  not  determine  the 


g  176]  FORFEITURE  WHEN   SUSTAINED  359 

rights  of  the  parties.  It  is  the  province  of  a  court  of  equity 
to  grant  relief  in  just  such  cases.  It  would  be  oppressive  and 
unjust  to  forfeit  plaintiff's  rights  under  this  contract. 

§  176.  Examples  of  Relief  From  Forfeiture  Granted. — Mc- 
Donald v.  Andrews,  199  Mich.  161.  Plaintiff  brought  a  bill 
for  the  specific  performance  of  a  land  contract.  The  contract 
was  a  lease  with  an  option  to  purchase  and  plaintiff  exercised 
the  option  and  defendant  refused  to  convey,  claiming  that  the 
contract  had  been  forfeited  because  it  has  been  assigned  by 
plaintiff  when  it  contained  a  clause  against  assignment. 

The  court  held  that  the  assignment  in  this  case  was  made 
merely  for  the  purpose  of  putting  the  contract  on  record  and 
that  the  sister  of  the  plaintiff  who  was  the  assignee  did  not 
even  know  of  the  assignment.  Plaintiff  remained  in  posses- 
sion all  the  time.  That  the  purpose  of  a  covenant  against 
assignment  is  to  permit  the  vendor  to  choose  his  own  tenant; 
this  object  was  in  no  way  interfered  with  by  the  transaction  in 
this  case  and  when  plaintiff  offered  to  pay  the  contract  price 
for  the  premises  he  was  entitled  to  a  conveyance. 

Maday  v.  Roth,  160  Mich.  289.  Plaintiff  filed  a  bill  for  spe- 
cific performance  of  a  land  contract.  He  is  assignee  of  the 
original  vendee  under  the  contract  which  provided  for  for- 
feiture in  case  of  assignment  without  written  consent  of  ven- 
dor.   Defendant  assented  orally  to  the  assignment. 

The  court  held  that  the  parol  assent  on  the  part  of  the 
vendor  to  the  assignment  constituted  a  valid  waiver  of  the 
provisions  of  the  contract  prohibiting  the  transfer  of  the  con- 
tract without  the  written  consent  of  the  vendor. 

Peters  v.  Canfield,  74  Mich.  498.  Plaintiff  filed  a  bill  praying 
for  the  specific  performance  of  a  land  contract  which  he  holds 
as  assignee  from  the  original  vendee.  Defendant  contends 
that  the  contract  had  been  forfeited  by  the  assignment,  since 
it  contained  a  clause  providing  for  forfeiture  in  case  of  sale 
or  assignment  unless  such  assignment  should  be  indorsed  on 
the  contract  in  writing.  Complainant  contends  that  there  was 
parol  assent  to  the  assignment  and  defendant  denies  even 
parol  assent. 

The  court  held  that  there  was  sufficient  evidence  to  es~ 
tablish  the  parol  assent  which  the  plaintiff  claimed;  that  by 


360  THE  LAW  0F  LAND  CONTRACTS  [§  176 

such  parol  assent  the  defendant  had  waived  the  provision  in 
the  contract  that  the  assignment  must  be  indorsed  thereon. 

§  177.  Relief  From  Forfeiture  Granted,  Illustrative  Cases. — 

Hickman  v.  Chaney,  155  Mich.  217. 

Plaintiff  is  assignee  under  a  land  contract  and  brings  this 
bill  to  enforce  specific  performance  of  the  contract.  Assignor 
of  plaintiff  was  in  default  at  the  time  of  the  assignment  and 
the  contract  contained  the  usual  provision  that  failure  to  keep 
up  the  installments  of  payments  would  entitle  vendor  to  declare 
the  contract  void.  Before  purchasing  the  contract  plaintiff 
made  inquiries  of  the  defendant  and  was  informed  that  if 
he  took  over  the  contract  and  proceeded  to  pay  the  amount  of 
the  balance  due,  the  defendant  would  execute  a  deed  to  the 
premises.    This  the  defendant  now  refused  to  do. 

The  court  held  that  the  plaintiff  was  entitled  to  specific 
performance  and  that  the  defendant  could  not  now  declare  the 
contract  forfeited.  That  although  the  contract  had  been  de- 
clared forfeited  by  defendant  as  far  as  plaintiff's  assignor  was 
concerned,  their  actions  in  leading  plaintiff  to  believe  if  he 
would  assume  the  contract  he  could  complete  the  payment  of 
the  amount  still  due  thereon  will  be  considered  a  waiver  of 
their  right  to  forfeit  the  contract  as  far  as  the  plaintiff  is 
concerned. 

Old  Second  National  Bank  of  Bay  City  v.  Alpena  County 
Savings  Bank,  115  Mich.  548.  Plaintiff  brought  a  bill  to 
compel  the  specific  performance  of  a  contract  to  convey  certain 
land.  Both  plaintiff  and  defendant  acquired  their  rights 
through  various  assignments  and  conveyances.  Plaintiff  de- 
faulted in  the  payment  of  installments  due  on  the  purchase 
price  and  defendant  declared  the  contract  forfeited.  Sub- 
sequent to  this,  however,  defendant  sought  to  enforce  the  con- 
tract by  bringing  an  action  to  collect  the  purchase  price  from 
the  defednant  by  foreclosing  the  vendor's  lien. 

Defendant  contends  that  this  action  cannot  be  maintained 
because  the  plaintiff  refused  to  perform  its  part  of  the  con- 
tract and  that  its  rights  under  the  contract  were  duly  for- 
feited. 

The  court  held  that  it  was  unnecessary  to  decide  whether 
the  failure  of  the  plaintiff  to  keep  up  the  payments  and  the 


§  178J  FORFEITURE  WHEN   SUSTAINED  361 

ensuing  notice  of  forfeiture  would  have  been  sufficient  to  work 
a  forfeiture  or  not;  for  here  the  defendant  chose  to  waive 
the  forfeiture  by  proceedings  to  enforce  the  contract  and  filing 
the  vendor's  lien  against  the  property.  Subsequent  to  the  de- 
fault defendant  treated  the  contract  as  still  existing  and  it 
cannot  now  allege  that  the  contract  was  forfeited. 

Corning  v.  Loomis,  111  Mich.  23.  Plaintiff  was  vendor  under 
executory  land  contract  and  brings  an  action  to  recover  the 
possession  of  the  premises'  upon  defendant's  failure  to  keep  up 
the  payment  of  installments  as  due  under  the  contract.  No 
notice  was  given  defendant  of  plaintiff's  intention  to  declare 
the  contract  void. 

The  court  held  that  mere  failure  of  the  vendee  to  keep  up 
the  payments  as  they  became  due  did  not  of  itself  work  a 
forfeiture ;  that  in  addition  thereto  there  must  be  notice  given 
the  vendee  by  the  vendor  that  such  failure  on  his  part  has  ter- 
minated the  contract. 

Hill  v.  Carter,  101  Mich.  158.  Defendant  is  vendee  in  a 
land  contract  and  is  in  possession  of  the  premises  and  plaintiff 
brings  this  action  in  ejectment  to  gain  possession  thereof, 
alleging  defendant  had  forfeited  contract  by  not  paying  the 
installments  as  they  became  due.  Defendant  alleged  offer  of 
payment. 

The  court  held  that  plaintiff  by  refusing  to  accept  defend- 
ant's offer  of  payment,  even  though  that  offer  did  consist  in 
an  offer  to  perform  certain  work  which  according  to  the  terms 
of  a  separate  contract  was  to  be  taken  as  payment  for  the 
land,  had  deprived  himself  of  all  right  to  declare  a  forfeiture 
for  failure  to  pay  according  to  the  terms  of  the  contract. 

§  178.  Relief  from  Forfeiture  Granted,  Illustrative  Cases. — 

Robinson  v.  Traufant,  97  Mich.  410. 

Plaintiff  was  vendee  under  an  executory  land  contract  and 
brings  this  bill  to  compel  specific  performance.  Defendant 
alleged  that  payments  were  not  kept  up  on  the  contract  and 
that  plaintiff  had  been  served  with  a  notice  to  quit  and  that 
the  contract  had  thereby  been  forfeited. 

The  court  found  that  the  plaintiff  had  as  a  matter  of  fact 
become  delinquent  in  payment  but  that  both  parties  were  in 
tacit  agreement  not  to  treat  time  as  of  the  essence  of  the 


362  THE  LAW  0F  LAND  CONTRACTS  [§  178 

contract  and  that  the  matter  had  run  along  for  many  years, 
the  plaintiff  keeping  up  the  interest  and  the  defendant  being 
content  to  regard  the  matter  as  an  investment.  Therefore, 
upon  plaintiff  offering  to  pay  the  amount  of  the  purchase  price 
she  is  entitled  to  specific  performance  of  the  contract. 

Greenop  v.  Wilcox  and  Hyatt,  85  Mich.  49.  The  real  de- 
fendant in  this  case  is  Wilcox,  Hyatt  merely  being  the  tenant 
of  Wilcox  and  in  possession  of  the  premises.  Defendant  is 
one  of  two  vendees  under  an  executory  land  contract.  He 
acquired  his  rights  under  and  assignment  from  one  of  the  two 
original  vendees.  At  the  time  of  this  said  assignment  defend- 
ant called  on  plaintiff  and  told  him  he  was  ready  at  any  time 
to  pay  his  portion  of  the  purchase  price  and  would  do  so  when- 
ever notified.  Plaintiff  brings  this  action  in  ejectment  to  get 
possession  of  the  premises,  no  payments  having  been  made  by 
defendant  or  his  covendee. 

The  court  held  that  plaintiff  could  not  declare  defendant's 
rights  forfeited  under  the  contract  without  first  notifying  him 
to  pay ;  such  notice  being  a  condition  precedent  to  declaring  the 
contract  forfeited.  And  that  defendant's  rights  could  not  be 
affected  by  the  acts  of  the  other  vendee. 

Stickney  v.  Parmenter,  35  Mich.  237.  Plaintiff  brings  this 
action  for  the  specific  performance  of  an  executory  land  con- 
tract. Defendant  is  assignee  of  the  original  vendor  and  de- 
fends on  the  ground  that  the  contract  had  been  forfeited  by 
plaintiff  taking  timber  off  the  land  before  the  amount  of  the 
purchase  price  was  paid.  Plaintiff  alleged  an  agreement  with 
the  assignor  of  defendant  whereby  they  could  remove  said 
timber  in  order  to  raise  the  purchase  price.  After  defendant 
began  proceedings  to  regain  possession  plaintiff  offered  to 
pay  the  purchase  price. 

The  court  held  that  there  was  not  sufficient  evidence  to  hold 
that  plaintiff  was  entitled  to  remove  the  timber  and  that  de- 
fendant was  justified  in  declaring  the  contract  forfeited;  still 
since  the  plaintiff  without  much  delay  offered  and  tendered 
payment  of  the  purchase  price  and  the  cost  of  the  proceedings 
already  taken,  defendant  should  have  accepted  same,  and 
specific  performance  of  the  original  contract  will  be  enforced. 


g  179  |  FORFEITURE  WHEN   SUSTAINED  3C3 

Fitzhugh  v.  Maxwell,  34  Mich.  138.  Plaintiff  sold  land  to 
the  defendant  under  an  executory  contract.  Plaintiff  alleged 
default  in  payment  on  the  part  of  the  defendant  and  brings 
this  bill  praying  that  the  contract  be  declared  forfeited  by  the 
court.  The  contract  itself  contained  no  clause  providing  for 
forfeiture  in  case  of  nonpayment. 

The  court  held  that  a  court  of  equity  has  no  jurisdiction  to 
enforce  forfeiture.  That  time  was  not  made  of  the  essence 
of  this  contract  and  that  plaintiff  has  not  given  the  defendant 
any  notice  that  if  the  payments  are  not  made  by  a  certain  date 
the  contract  will  be  forfeited.  Forfeiture  cannot  be  enforced 
in  such  a  case. 

Shafer  v.  Niver,  9  Mich.  253.  The  facts  in  this  case  in  so  far 
as  the  question  of  forfeiture  are  concerned  are  as  follows: 
Plaintiff  was  vendee  under  an  executory  land  contract  and 
brings  this  bill  to  secure  a  conveyance  of  the  premises.  The 
payments  of  the  purchase  price  were  not  made  as  soon  as 
provided  for  in  the  contract,  said  contract  also  containing  a 
clause  of  forfeiture  in  case  the  terms  were  not  adhered  to. 

The  court  held  that  time  was  not  made  of  the  essence  in 
this  particular  contract.  The  parties  themselves  by  their 
previous  actions  in  relation  to  the  contract  did  not  treat  time 
as  of  the  essence  and  there  is  nothing  in  the  contract  to  make 
it  especially  so.  Plaintiff  is  now  ready  and  willing  to  perform 
and  the  contract  was  not  forfeited  beyond  redemption  by  his 
failure  to  pay  the  installments  on  the  date  they  fell  due. 

§  179.  Forfeiture  Sustained,  Illustrative  Cases. — Murphy 
v.  Mclntyre,  152  Mich.  591.  Defendant  failed  to  make  the  pay- 
ments as  they  became  due  upon  an  executory  contract  entered 
into  with  the  plaintiff.  Upon  such  default  being  made  plaintiff 
notified  defendant  that  because  of  said  default  the  contract 
had  become  void. 

The  court  held  that  mere  default  of  the  vendee  alone  under 
such  a  contract  does  not  work  a  forfeiture.  Notion  of  election 
of  the  vendor  to  forfeit  is  required  in  order  to  terminate  the 
contract  relation.  In  this  case  there  was  default  and  notice 
given  by  the  vendor  to  the  vendee  that  the  contract  had  become 
a  nullity.  Therefore  the  plaintiff  is  entitled  to  immediate 
possession. 


384  THE  LAW  OF  LAND  CONTRACTS  [§  179 

Jones  v.  Bowling,  117  Mich.  288.  Plaintiff  and  defendant 
executed  a  land  contract  whereby  plaintiff  was  to  convey  and 
defendant  to  purchase  certain  described  property  for  a  certain 
consideration,  part  to  be  paid  down  and  the  balance  in  install- 
ments due  at  certain  specified  times.  According  to  the  terms 
of  the  contract  if  the  vendee  should  default  in  any  of  the  pay- 
ments the  vendor  could  declare  the  contract  void  and  treat 
previous  payments  as  stipulated  rents.  The  vendee  in  this  case 
did  fail  to  keep  up  the  payments,  but  after  such  default  the 
vendor  consented  to  delay  for  a  time  the  enforcement  of  the 
forfeiture  clause  in  the  contract  in  order  to  give  the  vendee  time 
to  raise  more  money  and  the  vendor  accepted  some  small  pay- 
ments on  the  contract  after  said  extension  of  time.  Defendant 
vendee  did  not  secure  sufficient  funds  to  complete  the  purchase 
and  plaintiff  declared  the  contract  forfeited.  Defendant  con- 
tended that  the  plaintiff  had  waived  his  right  to  declare  the 
contract  void  by  extending  the  time  of  payment  and  by  accept- 
ing payments  thereafter. 

The  court  held  that  the  right  of  the  vendor  to  declare  a  for- 
feiture had  not  been  waived  by  extending  the  time  and  that 
upon  defendant's  default  the  plaintiff  was  entitled,  upon  giving 
notice  of  his  intention  to  rely  on  the  forfeiture  clause  of  the 
contract,  to  declare  the  contract  void  and  to  immediate  posses- 
sion of  the  premises. 

§180.  Forfeiture  Sustained,  Illustrative  Cases. — Welling  v. 
Strickland,  161  Mich.  235.  Plaintiff  brought  a  bill  praying  for 
the  specific  performance  of  a  land  contract.  Plaintiff  was  ven- 
dee under  the  contract  and  according  to  the  terms  thereof 
the  vendee  was  to  pay  the  taxes  on  the  premises  as  they  be- 
came due  and  also  to  keep  the  property  insured  and  in  case  of 
failure  on  the  part  of  the  vendee  to  perform  these  and  other 
provisions  therein  contained  the  contract  was  to  be  immediately 
forfeited  and  notice  to  quit  and  of  forfeiture  were  both  ex- 
pressly waived.  The  plaintiff  herein  did  fail  to  pay  the  taxes 
and  to  keep  the  premises  insured  and  the  defendant  declared 
the  contract  forfeited.  Defendant  went  into  possession  of  the 
premises. 

The  court  held  that  the  defendant  was  entitled  to  declare 
the  contract  forfeited  after  plaintiff  failed  to  live  up  to  the 


§181]  FORFEITURE  WHEN   SUSTAINED  365 

obligation  thereof;  that  it  was  unnecessary  for  him  to  serve 
notice  of  forfeiture  on  plaintiff  since  that  notice  was  expressly 
waived  by  the  terms  of  the  contract  itself. 

Scott  v.  Sullivan,  159  Mich.  297.  Plaintiff  was  the  vendee 
or  licensee  under  a  contract  whereby  he  was  to  have  the  right 
to  cut  timber  on  the  premises  for  a  period  of  fifteen  years.  It 
was  provided  in  the  contract  that  the  plaintiff  should  pay 
one-half  of  all  the  taxes  and  assessments  that  might  be  levied 
against  the  property  and  that  time  in  the  payment  thereof 
should  be  of  the  essence  of  the  contract. 

Plaintiff  did  not  pay  the  taxes  and  the  defendants  who  were 
the  grantors  or  licensors  have  declared  the  contract  forfeited. 

The  court  held  that  the  failure  of  the  plaintiff  to  pay  the 
taxes  operated  as  a  forfeiture  of  the  contract.  The  plaintiff 
contended  that  title  had  passed  and  that  the  payment  of 
the  taxes  was  merely  a  condition  subsequent  and  that  equity 
will  not  enforce  a  forfeiture.  However,  the  court  held  that  the 
payment  of  the  taxes  was  not  a  condition  subsequent,  but  a 
condition  precedent ;  that  nonperformance  thereof  operated  as 
a  forfeiture,  especially  so  since  time  was  expressly  made  of  the 
essence  of  the  contract  and  the  plaintiff  failed  for  three  succes- 
sive years  to  pay  the  taxes ;  defendant  has  made  out  no  case 
entitling  him  to  equitable  relief  by  showing  that  he  forgot  to 
pay  the  taxes  or  that  he  delayed  payment  after  notice  of  his 
default  because  it  would  be  inconvenient  for  him  to  make  the 
payments. 

§  181.  Forfeiture  Sustained,  Illustrative  Cases. — Tower  v. 
Detroit  Trust  Co.,  190  Mich.  670.  The  plaintiff  petitioned  the 
court  to  cancel  a  certain  land  contract  made  between  himself 
and  the  Chippewa  Construction  Co.,  the  defendant  in  this  case 
being  the  receiver  of  the  defunct  construction  company.  Ac- 
cording to  the  terms  of  the  contract  the  company  agreed  to 
purchase  certain  property  from  the  plaintiff  herein  for  $97,000. 
One  thousand  dollars  of  the  purchase  price  was  to  be  paid  down 
and  the  balance  in  monthly  payments.  The  down  amount  was 
paid,  but  none  of  the  monthly  installments  were  ever  paid. 
The  total  amount  of  the  purchase  price  was  to  be  paid  by 
February  1st,  1913.  On  that  date  the  company  was  already 
in  the  hands  of  the  defendant,  its  receiver,  and  the  plaintiff 


366  THE  LAW  OF  LAND  CONTRACTS  [§  181 

served  notice  on  the  defendant  by  which  he  exercised  his 
rights  under  the  contract  and  declared  the  contract  forfeited. 

Defendant  urged  that  equity  abhors  and  will  not  enforce 
a  forfeiture.  The  court  held  that  this  forfeiture  will  be  en- 
forced. The  defendant  receiver  did  not  tender  payment  nor  is 
it  doing  so  now.  There  is  no  prospect  that  it  will  be  able 
to  offer  payment  in  the  near  future.  The  plaintiff  complied 
with  all  the  terms  of  the  contract  and  has  performed  all  the 
conditions  of  the  contract  that  it  was  incumbent  on  him  to 
perform.  Equity  will  not  as  a  general  rule  enforce  forfeiture, 
but  where  as  here,  the  equities  of  the  case  are  all  with  the 
party  seeking  to  have  a  forfeiture  enforced,  then  equity  will 
enforce  a  forfeiture. 

Donnelly  v.  Lyons,  173  Mich.  515.  The  plaintiff  brought  a 
bill  against  the  defendant  to  quiet  title  to  certain  property. 
She  had  contracted  to  sell  this  property,  consisting  of  twenty- 
six  lots,  to  the  defendant  for  $1040.  Two  dollars  was  paid 
down  and  the  balance  was  to  be  paid  at  the  rate  of  $5.00  or 
more  every  three  months.  The  first  payment  was  due  April 
10th,  1910,  and  was  never  paid,  the  two  dollar  down  payment 
being  the  only  payment  ever  made.  When  the  time  for  the 
first  payment  arrived  and  no  payment  was  made  the  plaintiff 
proceeded  to  dispose  of  the  lots  elsewhere,  and  did  sell  them 
sometime  in  July  to  another  party.  Lyons  assigned  his  con- 
tract to  one  Rice  shortly  after  executing  it  and  after  the  above 
mentioned  sale  to  the  third  party  by  the  plaintiff.  Rice  made 
a  claim  to  the  title  of  the  lots  and  this  bill  is  brought  to  clear 
up  the  title.  After  learning  of  Rice's  claim  the  plaintiff  imme- 
diately notified  him  that  the  contract  which  he  held  as  as- 
signee was  forfeited. 

The  court  held  that  the  plaintiff  was  entitled  to  the  relief 
prayed  for  in  this  bill  and  that  she  was  justified  in  declaring 
forfeited  the  contract  made  with  Lyons  and  assigned  to  Rice. 
According  to  the  terms  of  the  said  contract  defendant  was  to 
keep  all  taxes  which  should  be  assessed  against  the  premises 
paid.  The  defendant  defaulted  in  the  payment  of  taxes  for  one 
year  and  without  serving  any  notice  of  forfeiture  plaintiff 
brought  this  action. 


§  182] 


FORFEITURE  WHEN   SUSTAINED  367 


The  court  held  that  the  plaintiff  could  not  maintain  the  pres- 
ent action.  The  relations  between  the  parties  were  contract 
relations ;  such  relations  might  continue  to  exist  after  a  breach 
by  the  vendee,  for  the  vendor  might  decide  to  waive  the  breach 
or  forego  her  action.  This  contract  contained  no  provision  that 
notice  of  intention  to  declare  a  forfeiture  was  waived  and  in 
view  of  such  absence  the  vendor  must  terminate  the  contract 
relation  by  notice  of  forfeiture  or  do  some  affirmative  act 
which  in  itself  determines  the  contract  relation  before  a  sum- 
mary action  to  recover  possession  of  the  premises  can  be  begun. 

§  182.  Forfeiture  Sustained,  Illustrative  Cases.— Satterlee 
v.  Cronkhite,  114  Mich.  634.  The  plaintiff  here  was  the  ven- 
dee in  a  land  contract  and  is  suing  to  recover  from  the  defend- 
ant who  was  the  vendor,  the  amount  she  had  paid  on  the  con- 
tract of  purchase  before  she  defaulted  therein.  The  contract 
provided  that  in  the  event  of  the  vendee  failing  to  keep  the 
installments  paid  as  they  became  due  the  vendor  should  have 
the  right  to  cancel  the  contract  and  to  immediate  possession 
of  the  premises.  The  plaintiff  defaulted  in  her  payments  and 
was  given  notice  by  the  defendant  that  the  contract  was  void. 
The  court  held  that  the  plaintiff  had  no  standing  in  court 
and  could  not  recover  what  she  had  paid  on  the  contract.  By 
the  terms  of  the  contract  all  payments  made  before  a  for- 
feiture should  be  declared  were  to  be  forfeited  to  the  vendor. 
Plaintiff  had  failed  to  perform  her  part  of  the  contract  and  is 
not  entitled  to  any  relief. 

Lowrie  v.  Gourlay,  112  Mich.  641.  Plaintiff  brought  an  action 
in  assumpsit  to  recover  the  amount  he  had  paid  on  an  install- 
ment contract  for  the  purchase  of  land.  The  contract  had  been 
declared  forfeited  by  the  defendant.  Plaintiff  had  already  been 
granted  a  decree  for  the  specific  performance  of  the  contract 
in  a  court  of  equity,  but  the  decree  was  dismissed  because  he 
failed  and  refused  to  pay  the  balance  due  on  the  purchase  price. 
The  court  held  that  the  plaintiff  had  no  standing  in  court; 
that  he  neglected  to  pay  and  never  tendered  the  amount  due  on 
the  contract.  By  being  in  default  the  plaintiff  forfeited  the 
amount  already  paid  and  since  he  was  granted  relief  in  equity 
if  he  would  complete  the  payment  of  the  purchase  price  he 
cannot  maintain  this  action  to  recover  the  forfeited  payments. 


368 


THE  LAW  OF  LAND  CONTRACTS 


[§182 


Truesdail  v.  Ward,  24  Mich.  116.  Plaintiff  brought  a  bill 
to  enforce  the  specific  performance  of  a  contract  to  convey 
land.  Time  was  expressly  made  of  the  essence  of  the  contract 
and  if  the  installment  payments  were  not  made  when  due  the 
contract  was  to  become  void.  Plaintiff  defaulted  in  his  pay- 
ments and  defendant  declared  the  contract  forfeited.  Four 
months  after  this  forfeiture  defendant  conveyed  the  premises 
to  a  third  party.  Six  months  later  or  ten  months  after  the 
forfeiture  was  delcared  the  plaintiff  offered  to  pay  the  balance 
of  the  purchase  price  and  upon  defendant  refusing  to  convey 
this  bill  was  filed. 

The  court  held  that  the  defendant  in  this  case  had  been 
justified  in  declaring  a  forfeiture.  In  order  for  the  vendee 
in  such  a  case  to  protect  his  equities  under  the  contract  he 
must  not  allow  the  vendor  to  suppose  that  he  has  asquiesced 
in  the  forfeiture  when  declared  by  the  vendor.  Here  the  vendee 
made  no  protest  when  the  forfeiture  was  declared  and  since 
the  defendant  has  sold  the  land  to  a  third  party  the  plaintiff's 
rights  under  the  contract  will  be  terminated. 

§  183.  Relief    from    Forfeiture,    Necessity    of   Tender.— A 

party  seeking  relief  against  forfeiture  should  tender  sufficient 
to  make  the  other  party  whole.  If  he  does  not  make  this  tender 
before  filing  the  bill  of  complaint  he  should  at  least  make  the 
tender  by  bill  and  the  better  practice  would  be  to  pay  all  ar- 
rearages due  upon  the  land  contract  into  court  together  with 
all  interest,  although  in  one  case  the  vendee  made  no  tender 
of  the  amount  due  either  in  the  Supreme  court  or  the  lower 
court,  but  was  permitted  to  redeem  upon,  paying  to  the  clerk 
of  the  Circuit  court  within  sixty  days  all  arrearages  due  under 
the  contract  together  with  the  costs  of  both  courts.23 


23.  Lozon  v.  McKay,  203  Mich. 
364;  Hickman  v.  Chaney,  155  Mich. 
217;  Stickney  v.  Parmenter,  35 
Mich.  237;  Morris  v.  Hoyt,  11 
Mich.  9. 

In  Lozon  v.  McKay,  supra,  the 
plaintiff  had  been  in  arrears  on  one 
payment  under  a  contract  of  $200 
and  had  failed  to  pay  the  taxes 
which  were  more  than  one  year  in 


arrears,  and  had  never  tendered  or 
offered  to  pay  the  sums  called  for 
by  the  contract.  In  respect  to 
that  case  the  court  used  the  fol- 
lowing language: 

"It  is  apparently  as  uncertain  now 
as  it  has  been  for  years  whether 
the  plaintiffs  can  pay  what  is  due 
to  the  defendant.  It  ought  to  have 
been  tendered  before  suit  was  be- 


s  185  I  FORFEITURE  WHEN   SUSTAINED  369 

§  184.  Relief  from  Forfeiture  After  Final  Judgment  by  Cir- 
cuit Court  Commissioner. — Where  the  vendor  elects  to  re- 
possess himself  of  the  property  through  proceedings  by  the 
circuit  court  commissioner,  and  the  vendee  does  not  avail  him- 
self of  the  privilege  of  paying  the  amount  due,  under  the 
statute  within  30  days  of  the  date  of  the  rendition  of  the 
judgment  before  such  commissioner,24  equity  will  not  entertain 
a  bill  for  specific  performance  or  for  relief  from  the  forfeiture 
effectuated  by  the  judgment  of  the  circuit  court  commissioner, 
in  the  absence  of  fraud,  accident,  or  mistake.25 

§  185.  Relief  from  Forfeiture— Bill  of  Complaint,  Form  of 
— Including  Averments  for  Specific  Performance  and  Injunc- 
tive Relief. — Usually  a  vendee  in  filing  an  action  to  obtain 
relief  from  forfeiture  of  a  land  contract  requires  injunctive 
relief  to  prevent  the  defendant  from  dispossessing  him  during 
the  pendency  of  the  equity  action,  and  specific  performance  of 
the  contract,  as  the  attitude  of  the  vendor  in  forfeiting  such 
agreement  is  indicative  of  some  unwillingness  on  his  part  to 
carry  out  the  terms  thereof. 

The  following  form  of  bill  of  complaint  for  relief  from  for- 
feiture contains  averments  both  for  specific  performance,  and 
injunctive  relief  pending  the  action. 

(Address  and  Introduction.) 

1.  That  on  or  about  the day  of the 

plaintiff  herein,  and  C.  D.,  the  above  named  defendant,  made 

gun,  in  which  case  it  is  likely  that      rearages  of  interest  and  taxes,  and 
no  suit  would  have  been  necessary.      also  the  costs  of  both  courts. 


The  money  should  in  any  event 
have  been  brought  into  court  so 
that  the  court  might  be  certain 
that  the  terms  upon  which  relief 
from  forfeiture  was  granted  would 
be  complied  with." 

However,  notwithstanding  the 
somewhat  forceful  language  used, 
the  Supreme  Court  in  this  case 
reversed  the  decree  of  the  Oge- 
maw Circuit  Court  upon  the  condi- 
tion that  the  plaintiffs  pay  within 
sixty  days  after  the  entry  of  the 
decree   the   unpaid    purchase   price  25.  Security    Investment    Co.    v. 

of  the  land,  together  with   all   ar-      Meister,  214  Mich.  338. 


24.  Public  Acts  243,  1917,  provid 
ing  that  where  a  judgment  for  res- 
titution of  the  premises  shall  be 
given  in  possessory  proceedings  be- 
for  a  Circuit  Court  Commissioner 
where  an  executory  contract  for  the 
sale  of  land  is  forfeited,  the  com- 
missioner shall  determine  the 
amount  due  upon  the  contract,  and 
if  the  vendee  shall  pay  such  amount 
within  30  days,  the  judgment  shall 
be  vacated. 


370  THE  LAW  0F  LAND  CONTRACTS  [§  185 

and  entered  into  a  certain  agreement  and  contract  in  writing 
for  the  sale  by  said  defendant  to  this  plaintiff  of  the  following 
described  real  estate  to  wit:  (here  describe  the  real  estate), 
upon  the  following  terms  and  conditions:  (here  state  briefly 
the  terms  of  the  contract,  and  particularly  the  condition  of 
the  contract  violated),  a  true  copy  of  such  contract  being 
hereto  attached,  marked  "Exhibit  A,"  and  made  a  part  hereof. 

2.  That  this  plaintiff  has  in  all  respects  fully  carried  out  the 
terms  and  conditions  of  said  contract  on  his  part  to  be  per- 
formed except  as  hereinafter  set  out  and  has  paid  to  said 
defendant  upon  such  agreement  the  following  sums  of  money, 
to-wit:  (here  state  the  amounts  and  dates  if  possible  of  the 
various  sums  of  money  paid  upon  the  agreement  together  with 

interest  and  taxes)  upon  said  property  making  a  total  of 

dollars  paid  by  the  plaintiff  to  the  defendant  upon 

said  contract.  (If  the  plaintiff  has  made  any  valuable  im- 
provements on  the  land,  set  out  in  detail  the  character  and 
value  of  such  improvements  so  that  the  bill  will  show  the  full 
value  of  plaintiff's  equity  in  the  property.) 

3.  That  on  the... day  of ,  a  payment  be- 
came due  on  said  contract  amounting  to.. dollars  and 

that  on  said  date  plaintiff  was  absent  from  the  city  of 

where,  plaintiff  then  resided,  and  the  fact  that  such  payment 
on  said  contract  became  and  fell  due  on  said  date  had  tem- 
porarily slipped  from  the  memory,  of  plaintiff,  and  by  reason 
whereof  plaintiff  failed  to  make  said  payment  in  accordance 
with  the  terms  of  said  contract:  (or,  here  state  any  other 
reason  why  the  payment  was  not  met  or  why  vendee  became  in 
default) . 

4.  That  upon  plaintiff's  return  to  said  city,  to-wit,  on  the 

day  of plaintiff  immediately  tendered  to 

said  defendant  the  amount  of  such  payment  together  with  in- 
terest thereon  from  the  date  said  payment  became  due,  but 
that  said  defendant  then  and  there  wholly  refused  to  accept 
said  payment  and  then  and  there  served  on  this  plaintiff  a 
notice  declaring  said  contract  wholly  forfeited,  which  course 
defendant  had  a  right  to  take  according  to  the  provisions  of 
said  contract  and  that  said  defendant  refused  to  recognize 
this  plaintiff  as  a  party  to  said  contract,  or  that  said  contract 


§  185]  FORFEITURE  WHEN   SUSTAINED  371 

is  now  existent  and  claims  that  the  same  has  been  wholly  for- 
feited and  is  about  to  begin  an  action  at  law  against  this  plain- 
tiff to  recover  possession  of  said  real  estate  and  will  do  so  and 
dispossess  this  plaintiff,  thereby  causing  plaintiff  irreparable 
damage  unless  restrained  by  this  Honorable  Court  from  so 
doing. 

5.  That  said  property  has  greatly  enhanced  in  value  since 
plaintiff  has  purchased  the  same  and  that  to  permit  a  forfeiture 
of  said  contract  under  the  circumstances  would  be  wholly  un- 
just, unconscionsable  and  inequitable ;  that  unless  plaintiff 
shall  be  permitted  to  redeem  from  the  forfeiture  of  said  con- 
tract, as  thus  declared  by  the  defendant,  plaintiff  will  suffer 
great  and  irreparable  loss  and  damage  by  way  of  a  penalty  and 
will  lose  all  moneys  he  has  paid  upon  said  contract  and  all  the 
various  sums  he  has  from  time  to  time  invested  in  improve- 
ments in  said  property  and  the  increase  in  the  value  thereof 
amounting  in  the  aggregate  to  the  sum  of dollars. 

6.  That  prior  to  the  institution  of  this  action,  to-wit,  on  the 
day  of this  plaintiff  tendered  to  the  de- 
fendant the  sum  of dollars,  being  the  total  amount 

due  upon  said  contract  together  with  interest  on  the  same  as 
provided  in  said  contract,  which  tender  the  defendant  then 
and  there  refused  and  plaintiff  hereby  tenders  and  has  paid 
to  the  Clerk  of  this  Court  said  sum  and  hereby  tenders  and 
stands  ready  and  willing  to  pay  to  the  defendant  any  and  all  loss 
which  the  defendant  may  have  sustained  by  reason  of  plain- 
tiff's default  under  said  contract. 

7.  That  said  defendant  has  suffered  no  loss  or  disadvantage 
by  reason  of  plaintiff's  failure  to  pay  said  installment  as  pro- 
vided in  said  contract  as  herein  set  forth  and  will  suffer  no 
loss  if  plaintiff  is  allowed  to  redeem  from  said  forfeiture. 

8.  That  this  plaintiff  is  now  ready  and  willing  to  specifically 
perform  said  contract  on  his  part,  although  the  defendant  here- 
in has  wholly  neglected,  failed,  and  refused  to  carry  out  the 
terms  of  said  agreement  or  to  specifically  perform  the  same. 

Wherefore,  plaintiff  prays  the  following  relief: 
1.  That  a  restraining  order  issue  from  this  Honorable  Court 
enjoining  and  restraining  said  defendant  from  beginning  any 
action  at  law  for  the  recovery  of  said  premises,  or  from  selling, 


372'  THE  LAW  0F  LAND  CONTRACTS  [§  185 

assigning  and  transferring  the  same  during  the  pendency  of 
this  action  and  until  the  farther  order  of  this  court. 

2.  That  this  plaintiff  may  be  permitted  to  redeem  from  the 
forfeiture  of  said  contract  and  defendant's  interest  therein  as 
hereinbefore  set  forth  and  averred. 

3.  That  the  defendant  herein,  C.  D.,  may  be  decreed  specifi- 
cally to  perform  the  said  agreement  entered  into  with  the 
plaintiff  as  aforesaid,  this  plaintiff  being  ready  and  willing  and 
hereby  offering  specifically  to  perform  said  agreement  on  his 
part. 

4.  That  plaintiff  have  such  other,  further  and  different  re- 
lief as  may  seem  agreeable  to  equity  and  good  conscience. 

§  185 A.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
Involving  Relief  from  Forfeiture — Specific  Performance. — 
Continued. 

LOZON  v.  McKAY,  203  Mich.  364. 

(a)  Statement  of  Fact. 

(b)  Bill  of   Complaint. 

(c)  Defendant's  Answer. 

(d)  Brief  for  Plaintiff. 

(e)  Brief  for    Defendant. 

(f)  Holding  of  Court. 
HUBBELL  v.   OHLER,   213   Mich.   664. 

(a)  Brief   Statement  of  Fact. 

(b)  Bill   of   Complaint. 

(c)  Answer   to    Bill. 

(d)  Answer  of  Plaintiff  to  the  Cross-Bill   of  Defendants. 

(e)  The   Contract   Involved— "Exhibit   B". 

(f)  Transfer  of  the  Contract  to  Plaintiff  Hubbell— "Exhibit  "C". 

(g)  Notice  of  Forfeiture— "Exhibit  "A", 
(h)  Decree. 

(i)   Brief  of  Counsel,  John  M.  Dunham,  for  Plaintiff, 
(j)   Brief    of     Counsel,     Ellis     &     Ellis,    and     Clark     H.     Gleason,     for 
Defendant. 
LOZON  v.  McKAY,  203  Mich.  364. 

(a)  Plaintiff  filed  Bill  of  Complaint,  praying  for  specific  performance 
of  a  land  contract.  As  will  appear  from  the  Bill  of  Complaint  no  men- 
tion is  made  to  relief  for  forfeiture,  but  the  court  decreed  that  specific 
performance  would  not  be  granted  but  would  consider  the  Bill  as 
amended  so  as  to  ask  for  relief  from  forfeiture. 

(b)  Bill  of  Complaint. —  (Caption.)  Complaining,  the  plaintiffs  herein, 
Archie  Lozon  and  Alice  Lozon,  husband  and  wife,  respectively,  repre- 
sent unto  the  court: 


§  185 A]  FORFEITURE  WHEN   SUSTAINED  373 

I.  That  on  to-wit  the  4th  day  of  April,  A.  D.  1914,  they  entered  into  a 
contract  in  writing,  which  contract  was  in  duplicate,  with  Ephriam  Roe 
and  Cora  M.  Roe  and  Jessie  O.  Roe  and  Bannie  Roe  and  Ernest  Roe, 
for  the  purchase  of  a  piece  or  parcel  of  land  situate  in  the  Township 
of  Mills,  Ogemaw  County,  Michigan,  and  described  as  the  north  half 
(N.  i)  of  the  northeast  quarter  (N.  E.  })  of  section  eleven  (11),  town- 
ship twenty-one  (21)  north  of  range  three  (3)  east,  containing  eighty 
(80)  acres  of  land  as  shown  by  the  return  of  the  surveyor  general,  upon 
the  terms  and  conditions  and  in  tenor,  substance  and  effect  as  follows: 

This  contract,  made  in  duplicate  this  4th  day  of  April,  1914,  between 
Ephriam  Roe  and  Cora  M.  Roe,  and  Jessie  O.  Roe  and  Bannie  Roe  and 
Ernest  Roe,  party  of  the  first  part,  and  Archie  Lozon  and  Alice  Lozon, 
his  wife,  of  Bay  City,  Michigan,  party  of  the  second  part. 

Witnesseth:  That  said  party  for  and  in  consideration  of  the  sum  of 
eighteen  hundred  and  fifty  ($1850.00)  dollars,  to  be  to  it  duly  paid  as 
herein  specified,  hereby  agree  to  sell  and  convey  to  said  party  of  the 
second  part,  subject  to  reservations  herein  contained,  all  the  following 
described  lands  situated  in  the  Township  of  Mills,  County  of  Ogemaw, 
State  of  Michigan,  to-wit: 

The  north  half  (N.  I)  of  the  northeast  quarter  (N.  E.  \)  of  section 
eleven  (11),  township  twenty-one  (21),  north  of  range  three  (3)  east, 
containing  eighty  (80)  acres,  according  to  the  return  of  the  surveyor 
general.  Which  said  sum  the  said  party  of  the  second  part  agrees  to 
pay  to  said  party  of  the  first  part  at  its  office  as  follows: 

Ten  hundred  and  fifty  ($1050)  dollars  at  the  date  hereof  and  the  bal- 
ance of  eight  hundred  ($800)  dollars  as  follows:  Two  hundred  ($200) 
dollars  on  April  4th,  1916,  and  one  hundred  ($100)  dollars  on  April 
4th,  1917,  one  hundred  ($100)  dollars  on  April  4th,  1918,  and  the  bal- 
ance of  four  hundred  ($400)  dollars  on  April  4th,  1919,  with  privilege  of 
second  party  paying  all  or  any  part  at  any  time  hereafter,  with  interest 
on  all  sums  at  any  time  unpaid  hereon  at  the  rate  of  six  per  cent  (6%) 
per  annum,  payable  semi-annually.  Said  parties  of  the  second  part 
also  agree  to  pay  in  due  season  all  taxes  and  assessments  extraor- 
dinary as  well  as  ordinary  that  shall  be  taxed  or  assessed  on  said  land, 
including  the  taxes  thereon  for  the  year  1914. 

It  is  agreed  by  the  parties  hereto  that  the  party  of  the  first  part  of 
receiving  payments  in  full  of  the  said  principal  and  interest  at  the  times 
and  in  the  manner  above  mentioned  and  of  all  other  sums  chargeable  in 
its  favor  hereon,  shall  and  will  at  its  own  proper  cost  and  expense, 
execute  and  deliver  to  said  party  of  the  second  part  a  good  and  sufficient 
warranty  deed  and  abstract  of  said  above  described  land,  free  and  clear 
of  and  from  all  liens  and  encumbrances,  except  such  as  may  have 
accrued  on  said  land  subsequent  to  the  date  hereof  by  or  through  the 
acts  of  negligence  of  the  parties  of  the  second  part. 

It  is  also  mutually  understood  that  this  contract  contains  all  the 
representations  and  agreements. 


374  THE  LAW  OF  LAND  CONTRACTS  [§  185A 

It  is  also  agreed  by  the  parties  hereto  that  the  parties  of  the  second 
part  shall  have  possession  of  said  land  under  this  contract  on  the 
delivery  hereof. 

It  is  also  agreed  by  the  parties  hereto  that  if  the  said  party  of  the 
second  part  shall  fail  to  perform  this  contract  or  any  part  of  the  same 
and  shall  remain  in  arrears  for  thirty  (30)  days  after  notice  to  said 
second  parties  given  by  a  letter  addressed  to  said  second  parties  at 
the  address  herein,  that  thereupon  said  first  party  shall  have  the  right 
to  declare  this  contract  void  and  to  retain  all  moneys  which  may  have 
been  paid  hereon,  and  the  improvements  which  may  have  been  placed 
on  said  land,  as  stipulated  damages  for  the  non-performance  of  this 
contract  and  as  a  reasonable  rental  for  said  land,  and  may  consider  and 
treat  said  parties  of  the  second  part  as  its  tenant,  holding  over  without 
permission,  and  may  take  immediate  possession  of  said  land  and  remove 
said  parties  of  the  second  part  therefrom.  And  it  is  agreed  that  the 
stipulations  herein  contained  are  to  apply  to  and  bind  the  heirs,  execu 
tors,  administrators  and  assigns  of  the  respective  parties  hereto. 

In  witness  whereof,  the  parties  hereto  have  hereunto,  and  to  a  dupli- 
cate  hereof,    set   their  hands   and   seals   the   day   and   year   first   above 

written. 

Ephriam  Roe  and  Cora  M.  Roe, 
Jesse  Roe,  Bannie  Roe, 
Ernest  Roe, 
Archie  Lozon, 
Alice  Lozon. 

Signed,  esaled  and  delivered  in  the  presence  of:  S.  R.  Turner,  W.  H. 
Richardson. 

Duplicate  of  such  contract  being  now  in  possession  of  plaintiffs,  when 
produced  and  proved  as  this  court  shall  direct,  will  fully  appear,  and 
whereto  reference  is  prayed. 

II.  The  plaintiffs  further  show  to  the  court  that  directly  following  the 
signing  of  the  said  contract  in  duplicate,  they  paid  to  the  said  parties  of 
the  first  part  thereto  ten  hundred  and  fifty  ($1050)  dollars  in  cash  and 
immediately  took  possession  of  the  said  above  described  land  and  moved 
thereupon  and  erected  a  cement  house  thereon  costing  them  between 
eleven  hundred  ($1100)  and  twelve  hundred  ($1200)  dollars  and  otherwise 
made  improvements  upon  the  said  lands  by  clearing  up  about  sixty  (60) 
acres  thereof  and  stumping  the  greater  portion  of  same  and  building  and 
erecting  fences  thereon;  and  that  in  addition  to  paying  the  said  named 
parties  of  the  first  part  the  said  sum  of  ten  hundred  and  fifty  ($1050)  dol- 
lars, these  plaintiffs  had  expended  in  building,  clearing,  stumping,  fencing 
and  improving  said  farm  about  two  thousand   ($2000)   dollars. 

III.  The  plaintiffs  further  show  that  at  the  time  and  after  they  had 
entered  into  the  contract  above  set  forth  with  the  above  named  parties 
of  the  first  part,  they  were  given  to  understand  that  inasmuch  as  they 
had  made  a  large  cash  payment  upon  the  said  land  and  would  go  ahead 
and  improve  the  farm  as  they  then  proposed  doing,  that  they,  the  said 


S  185A]  FORFEITURE  WHEN  SUSTAINED  375 

named  parties  of  the  first  part,  would  not  be  in  a  hurry  and  would  not 
consider  time  the  essence  of  this  contract  in  the  event  these  plaintiffs 
should  fail  to  make  the  payment  of  two  hundred  ($200)  dollars  then  due 
on  such  contract  April  4th,  1916. 

IV.     That   plaintiffs   further  show   to  the   court  that  they   are  at  the 
present  time  temporarily  residing  in  Bay  County,  Michigan,  and  that  they 
have  an  agent  and  representative  residing  upon  the  farm  and  working 
and  clearing  the  land  for  them;  that  upon  the  5th  day  of  May,  1916,  they 
received  a  letter  at  their  home  at  Kawkawlin,   Michigan,  purporting  to 
come   from   James   McKay,   Prescott,   Michigan,  advising  them   that  he, 
McKay,  had  purchased  all  the  right,  title  and  interest  of  Ephriam  Roe 
and  wife,  and  Jesse  Roe  and  wife  in  and  to  the  land  set  forth  and  described 
in  said  contract,  and  that  he,  the  said  McKay,  desired  the  plaintiffs  to 
pay  to  him  the  two  hundred  ($200)  dollars  due  April  4th,  1916.     That  at 
such  time  these  plaintiffs  relying  upon  the  understanding  they  had  had 
with  the  said  Roes  was  not  able  to  forthwith  advance  the  said  sum  of 
money,  but  at  once  made  efforts  to  get  in  touch  with  the  said  Roes  and 
ascertain  if  the  lands  had  been  sold  to  McKay  as  stated  by  him.     That 
owing  to  circumstances  beyond  the  control  of  the  said  plaintiffs,  they 
were  unable  to  raise  the  said  sum  of  two  hundred  ($200)  dollars  as  soon 
as  they  would  have  liked  to  and  upon  the  28th  day  of  July,  as  these  plain- 
tiffs now  recall  it,  they  received   a  notice  signed  by  James   McKay  as 
assignee  of  the  said  vendors  named  in  the  said  contract,  which  notice 
recited  the  making  of  a  contract,  the  failure  of  these  plaintiffs  to  pay 
the  two  hundred   ($200)   dollars  due  April  4th,  1916,  promptly,  and  stat- 
ing that  he,  the  said  McKay,  had  upon  the  28th  day  of  July,  1914,  pur- 
chased the  said  lands  from  the  Roes  aforesaid  and  had  become  assignee 
of  their  duplicate   copy   of  the   contract  and   in   substance   declaring   a 
forfeiture  of  all  right,  title  and  interests  of  these  plaintiffs  in  and  to  the 
said  land  by  reason  of  their  failure  to  pay  the  said  two  hundred   ($200) 
dollars   and   some  interest  due,   April   4th,  1916;    and   likewise   notifying 
these  plaintiffs  to  quit,  surrender  and  deliver  up  to  him,  the  said  James 
McKay,  the  lands  and  premises  by  these  plaintiffs  heretofore  purchased 
of  the  said  parties  of  the  first  part  to  the  land  contract  above  set  forth 
and  upon  which  lands  they  had  added  improvements  to  the  amount  of 
two  thousand   ($2000)  dollars  or  more. 

V.  These  plaintiffs  further  show  that  upon  receipt  of  the  said  notice 
from  the  said  James  McKay  declaring  a  forfeiture,  they  immediately 
sent  Charles  W.  Hitchcock,  an  attorney  at  law,  of  Bay  City,  Michigan, 
to  Prescott,  Michigan,  to  see  the  said  McKay  with  relation  to  the  matter. 
That  Mr.  Hitchcock  immediately  interviewed  Mr.  McKay  at  his  bank 
in  the  Village  of  Prescott.  Ogemaw  County,  Michigan,  stating  to  Mr. 
McKay  that  he  had  come  there  as  the  representative  of  these  plaintiffs 
and  was  desirous  of  paying  up  all  that  was  unpaid  on  the  land  described 
in  the  contract  set  forth  in  the  first  paragraph  of  this  Bill  of  Complaint. 
That  Mr.  McKay  informed  Mr.  Hitchcock  at  that  time,  which  was  some 
time  in  the  month  of  August,  1916,  that  he,  Mr.  McKay,  could  not  accept 


376  THE  LAW  0F  LAND  CONTRACTS  [§  185A 

a  tender  of  the  money  for  the  reason  that  he  did  not  know  at  that  time 
how  much  was  due  upon  the  lands,  inasmuch  as  there  were  costs  for  the 
service  of  Notice  of  Forfeiture  and  he  would  have  to  interview  his  attor- 
ney, William  T.  Yeo,  West  Branch,  Michigan,  and  ascertain  what  said  costs 
amounted  to,  and  further  told  Mr.  Hitchcock  that  Mr.  Yeo  had  all  the 
papers  relating  to  the  matter  in  question  so  that  he  could  not  at  that  day 
accept  a  tender. 

VI.  The  plaintiffs  further  show  that  they  have  since  been  advised 
that  Mr.  McKay  refuses  to  give  them  a  deed  of  the  said  premises  and 
that  he  is  contemplating  selling  the  said  land;  and  they  are  further 
advised  that  the  said  McKay  absolutely  refuses  to  receive  or  accept  the 
said  moneys  for  principal,  interest  and  any  and  all  expense  of  serving 
the  notice   of  forfeiture. 

VII.  That  these  plaintiffs  have  always  been  willing  and  desirous  of 
paying  for  the  said  lands  and  still  are  ready  and  willing  and  now  offer 
fully  and  specifically  to  perform  their  part  of  the  said  agreement. 

Wherefore,  your  orator  prays: 

1.  To  the  end  therefore  that  the  said  James  McKay,  the  defendant 
hereto,  may  without  oath,  all  answer  upon  oath  being  hereby  waived, 
full,  true,  direct  and  perfect  answer  make  to  all  and  singular  the  matters 
hereinbefore  stated  and  charged. 

2.  And  that  the  said  James  McKay  may  be  decreed  to  specifically 
perform  his  part  of  the  said  agreement;  your  orators,  plaintiffs  herein, 
being  ready  and  willing  and  hereby  offering  to  specifically  perform  the 
same  upon   their   part. 

3.  And  that  the  said  James  McKay  may  come  to  an  account  with  these 
plaintiffs  touching  the  amount  due  and  owing  by  these  plaintiffs  to  him 
as  its  owner  in  fee  of  the  said  land,  on  the  said  agreement  these  plain- 
tiffs being  ready  and  willing  and  hereby  offer  to  pay  him  the  full  amount 
that  shall  be  found  due  to  him  on  such  accounting;  and  these  planitiffs 
ask  leave  to  pay  a  deposit  on  the  same  with  the  Register  of  this  court 
for  the  said  James  McKay,  to  be  paid  to  him  according  to  the  order 
and  directions  of  this  court. 

4.  And  that  upon  such  payment  to  the  said  James  McKay  or  the  Regis- 
ter of  this  court,  for  the  said  James  McKay,  he,  the  said  James  McKay,  be 
decreed  to  convey  to  these  plaintiffs  a  good  and  sufficient  deed  of  convey- 
ance duly  executed  and  acknowledged,  all  and  singular  the  said  land  in  fee 
simple  together  with  an  abstract  of  title  thereto  as  provided  in  said  land 
contract  with  the  said  Roes.  And  that  upon  such  payment  to  the  said 
James  McKay,  or  to  the  Register  of  this  court  as  aforesaid,  these  plain- 
tiffs be  decreed  to  be  the  owners  of  the  said  lands  and  premises  and  of 
each  and  every  part  or  parcel  thereof  in  fee  simple;  and  that  the  said 
James  McKay  be  decreed  to  be  divested  of  all  right,  title  and  interest 
therein;  and  that  these  plaintiffs  have  leave  to  cause  such  decree  to  be 
recorded  in  the  office  of  the  Register  of  Deeds  of  the  said  County  of 
Ogemaw,  as  a  conveyance  of  all  the  said  lands  and  premises  from  the 
said  James  McKay  to  these  plaintiffs;  and  that  these  plaintiffs  may  have 


S185A]  FORFEITURE  WHEN   SUSTAINED  377 

such   further  relief  and   such  other  relief   in   the   premises   as   shall   be 
agreeable  to  equity  and   good  conscience. 
And  these  plaintiffs  shall  forever  pray. 

Archie   Lozon, 
Alice  Lozon. 
Charles  W.   Hitchcok, 

Attorney  for  Plaintiffs. 
(Proper    verification.) 
Exhibit  A. 

West    Branch,    Michigan, 

May  twenty-first,  1916. 
Mr.  Archie  Lozon, 
Mrs.  Alice  Lozon, 
Kawkawlin,   Mich. 

Dear  Sir: — I  address  you  in  relation  to  a  certain  land  contract  executed 
by  Ephriam  Roe  and  wife,  Jesse  Roe,  to  Archie  Lozon  and  Alice  Lozon, 
dated  April  4th,  1914,  for  the  purchase  of  the  north  half  of  the  northeast 
quarter  of  section  11,  town  21  north,  range  3  east.  Under  the  terms  of 
this  land  contract  there  is  due  and  unpaid  thereon  the  sum  of  two  hun- 
dred dollars  on  the  principal  thereof,  together  with  interest  on  the  sum 
of  eight  hundred  dollars  from  September  4th,  1914,  at  six  per  cent  per 
annum. 

Ephriam  Roe  and  wife  and  Jesse  Roe  and  wife  have  conveyed  to  me 
their  interest  in  said  lands  as  well  as  their  interest  in  said  land  contract 
and  at  the  present  time  I  am  the  owner  of  the  rights  heretofore  pos- 
sessed by  the  said  Ephriam  Roe  and  Jesse  Roe. 

Pursuant  to  the  terms  of  said  land  contract,  I  hereby  notify  you  in 
writing  of  your  default  in  the  payment  of  said  moneys  due  on  said  land 
contract,  and  I  insist  upon  the  payment  of  such  moneys  forthwith. 

I  further  notify  you  that  unless  such  moneys  are  paid  forthwith,  I 
shall  serve  upon  all  the  parties  having  any  interest  in  said  lands  a  notice 
declaring  a  forfeiture  of  all  rights  possessed  by  the  grantees  named  in 
said  contract  and  their  assigns. 

I  therefore  urge  upon  you  to  give  this  matter  your  immediate  atten- 
tion if  you  desire  to  protect  your  rights  in  said  lands. 

Respectfully  submitted, 
James  McKay, 

by  William  T.  Yeo, 

His  Agent  and  Attorney. 
Exhibit  B. 
To  Archie  Lozon,  Alice  Lozon,  William  Wickert  and  Cordelia  Wickert: 

Take  notice,  that  whereas,  on  the  fourth  day  of  April  in  the  year  1914. 
there  was  executed  a  certain  land  contract  between  Ephriam  Roe  and 
Cora  M.  Roe,  his  wife,  and  Jesse  O.  Roe  and  Barnee  Roe.  as  parties  of 
the  first  part,  and  the  said  Archie  Lozon  and  Alice  Lozon,  of  the  City  of 
Bay  City,  Michigan,  as  parties  of  the  second  part,  wherein  the  said  Eph- 
riam Roe  and  Cora  M.  Roe,  his  wife,  and  Jesse  O.  Roe,  Barnie  Roe  and 


378  THE  LAW  0F  LAND  CONTRACTS  [§  185 A 

Ernest  Roe,  in  consideration  of  the  sum  of  eighteen  hundred  and  fifty 
dollars  to  be  paid  to  them,  and  of  the  covenants  to  be  performed  by  the 
said  parties  of  the  second  part  therein  named,  agreed  to  sell  to  the  said 
parties  of  the  second  part  the  following  described  lands  situated  in  the 
Township  of  Mills,  County  of  Ogemaw,  State  of  Michigan,  to-wit:  the 
north  half  of  the  northeast  quarter  of  section  eleven,  town  twenty-one 
north,  of  range  three  east,  containing  eighty  acres,  according  to  the 
returns  of  the  surveyor  general,  and  in  consideration  thereof,  the  said 
party  of  the  second  part  therein,  then  and  there  agreed  to  purchase  from 
the  said  parties  of  the  first  part  the  said  described  land  and  to  pay  for 
the  same  to  the  said  parties  of  the  first  part  the  said  sum  of  eighteen 
hundred  fifty  dollars  in  the  manner  following,  that  is  to  say:  Ten  hun- 
dred fifty  dollars  at  the  date  of  said  contract  and  the  balance  of  eight 
hundred  dollars  as  follows:  two  hundred  dollars  on  April  4th,  1916,  and 
one  hundred  dollars  on  April  4th,  1917,  and  one  hundred  dollars  on  April 
4th,  1918,  and  the  balance  of  four  hundred  dollars  on  April  4th,  1919,  with 
the  privilege  of  paying  all  or  any  part  at  any  time  from  date  of  said 
land  contract,  with  interest  to  be  computed  from  the  date  of  said  land 
contract  on  all  sums  at  any  time  unpaid  thereon  at  the  rate  of  six  per 
cent  per  annum,  payable  semi-annually;   and 

Whereas,  It  was  further  expressly  provided  in  said  land  contract  that 
said  party  of  the  second  part  shall  pay  in  due  season  all  taxes  and  assess- 
ments extraordinary  as  well  as  ordinary  that  shall  be  taxed  or  assessed 
on  said  land,  including  the  taxes  thereon  for  the  year  1914;   and 

Whereas,  It  is  further  mutually  covenanted  and  agreed  by  and  between 
the  parties  named  in  said  land  contract  that  the  said  parties  of  the 
second  part  shall  have  possession  of  said  lands  under  this  contract  from 
and  after  the  delivery  of  said  land  contract;   and 

Whereas,  It  was  further  covenanted  and  agreed  by  and  between  the 
parties  named  in  said  land  contract  that  if  the  said  parties  of  the  second 
part  shall  fail  to  perform  said  contract  or  any  part  of  the  same  and  shall 
remain  in  arrears  for  thirty  days  after  notice  to  said  second  parties 
given  by  a  letter  addressed  to  said  second  parties  at  the  address  herein 
that  thereupon  the  said  first  parties  shall  have  the  right  to  declare  said 
contract  void  and  to  retain  all  moneys  which  may  have  been  paid  thereon 
and  the  improvements  which  may  have  been  placed  on  said  lands,  as 
stipulated  damages  for  the  non-performance  of  said  contract  and  as  a 
reasonable  rental  for  said  land,  and  may  consider  and  treat  said  parties 
of  the  second  part  as  their  tenants  holding  over  without  permission,  and 
may  take  immediate  possession  of  said  lands  and  remove  said  parties 
of  the  second  part  therefrom;   and 

Whereas,  The  said  parties  of  the  first  part  in  said  land  contract 
named,  conveyed  all  their  right,  title  and  interest  in  and  to  said  described 
lands  on  the  twenty-eighth  day  of  July,  A.  D.  1914,  and  thereby  also 
assigned  all  their  right,  title  and  interest  in  and  to  said  land  contract; 
and 


§  185A] 


FORFEITURE  WHEN   SUSTAINED  379 


Whereas,  The  said  Archie  Lozon  and  Alice  Lozon,  his  wife,  have 
abandoned  the  possession  and  use  of  the  said  described  lands,  having 
removed  therefrom  to  near  the  Village  of  Kawkawlin  in  said  state. 
That  William  Wickert  and  Cordelia  Wickert,  his  wife,  are  now  occupying 
the  said  lands  under  a  certain  lease  from  the  said  Archie  Lozon  and 
Alice   Lozon;    and 

Whereas,  The  said  James  McKay  on  the  twenty-fifth  day  of  May,  A.  D. 
1916,  addressed  a  certain  letter  in  writing  to  each  of  the  said  Archie 
Lozon,  Alice  Lozon,  William  Wickert  and  Cordelia  Wickert,  wherein  the 
said  James  McKay  notified  each  of  said  parties  that  default  had  been 
made  in  the  payment  of  the  money  due  on  said  land  contract  and  insist- 
ing upon  the  payment  of  such  moneys  forthwith,  also  advising  them 
that  if  payment  was  not  made  that  he,  the  said  James  McKay,  would 
declare  a  forfeiture  of  such  rights  as  may  be  possessed  by  them  under 
said  land  contract.  That  said  letters  in  writing  were  received  by  each  of 
said  above  named  parties  by  registered  letter  and  receipt  therefor  signed 
by  each  of  said  parties  is  now  in  possession  of  the  said  James  McKay;  and 

Whereas,  The  said  Archie  Lozon,  Alice  Lozon  and  William  Wickert 
have  failed  and  neglected  to  pay  the  installments  becoming  due  on  said 
land  contract  as  aforesaid  on  April  fourth,  1916,  and  the  interest  on  the 
several  sums  of  money  remaining  unpaid,  and  the  taxes  levied  upon 
said  lands  as  expressly  provided  in  said  land  contract. 

Wherefore,  By  reason  of  default  having  been  made  in  the  terms. 
covenants  and  conditions  set  forth  in  said  land  contract  as  aforesaid, 
therein  agreed  to  be  performed  by  the  said  Archie  Lozon  and  Alice 
Lozon  as  vendees  therein,  as  in  said  contract  expressly  provided,  I,  the 
said  James  McKay,  do  hereby  declare  a  forfeiture  of  all  rights  that  may 
have  been  heretofore  possessed  by  the  said  Archie  Lozon,  Alice  Lozon 
and  William  Wickert.  and  that  said  land  contract  is  null  and  void  because 
of  such  default,  and  that  the  said  Archie  Lozon,  Alice  Lozon  and  William 
Wickert,  and  each  of  them,  be  and  are  hereby  declared  to  be  without 
right  or  claim  in  and  to  said  described  lands  or  the  hereditaments  and 
privileges  thereunto  belonging  or  in  anywise  appertaining  thereto,  and 
that  the  said  Archie  Lozon,  Alice  Lozon  and  William  Wickert  are  also 
herewith  required  to  execute  a  release  of  all  rights  and  claims  hereto- 
fore possessed  by  them  or  either  of  them  in  said  lands  and  premises  to 
me,  and  I  hereby  offer  to  pay  the  expense  of  executing  releases  of  said 
lands  and  in  default  of  the  execution  of  such  releases,  I  will  take  such 
proceedings  as  I  deem  advisable  in  order  to  remove  the  cloud  to  my 
title  occasioned  by  the  execution  of  said  land  contract  as  aforesaid; 
and  also  by  reason  of  the  forfeiture  of  all  rights  and  claims  that  may 
have  been  possessed  by  you  or  either  of  you  as  vendees  under  said  land 
contract  or  lessee  under  such  vendees,  and  I  hereby  require  you  to 
immediately  quit,  surrender  and  deliver  up  possession  to  me  of  the  lands 
and  premises  heretofore  described. 


380  THE  LAW  OF  LAND  CONTRACTS  [§  185 A 

Dated  at  the  Township  of  Richland,  County  of  Ogemaw,  State  of  Michi- 
gan, this  twenty-eighth  day  of  July,  A.  D.  1916. 


Assignee  of  said  vendors  named 
in   said  land   contract. 


Attorney  for  said  assignee  of  said  vendors. 
Business  address,  West  Branch,  Mich. 

Verification  of  Sheriff  of  County  of  Bay. 

Verification  of  Sheriff  of  County  of  Ogemaw. 

(c)  Defendant's  Answer.— (Caption.)  The  Answer  of  James  McKay,  de- 
fendant, to  the  Bill  of  Complaint  of  Archie  Lozon  and  Alice  Lozon, 
plaintiffs. 

This  defendant,  saving  and  reserving  to  himself  all  benefit  and  right 
of  exception  to  the  said  Bill  of  Complaint,  for  Answer  thereto,  says : 

1.  Defendant  has  no  personal  knowledge  of  the  execution  of  the  con- 
tract as  set  forth  in  said  paragraph,  but  admits  that  he  is  in  possession 
of  a  duplicate  copy  of  the  contract  as  particularly  set  forth  in  paragraph 
I  of  said  Bill  of  Complaint. 

2.  Defendant,  in  answer  to  paragraph  II  of  said  Bill  paid  upon  said  land 
contract  and  the  only  information  he  has  in  respect  to  same  is  the  allega- 
tion contained  in  said  land  contract. 

Defendant  denies  that  plaintiffs  erected  upon  said  land  a  house  costing 
twelve  hundred  dollars,  or  that  they  cleared  of  the  land  about  sixty  acres 
or  that  the  total  improvements  upon  said  land  amount  to  two  thousand 
dollars.  This  defendant  represents  the  facts  to  be  that  there  was  erected 
upon  said  land  a  skeleton  cement  block  house  which  was  not  finished  on 
the  inside  and  which  did  not  cost  to  exceed  six  hundred  dollars  at  the 
time  it  was  originally  built  and  that  the  said  house  has  not  been  kept 
in  repair,  until  at  the  present  time,  it  is  not  worth  nearly  as  much  as  it 
originally  cost.  That  plantiffs  did  not  do  any  new  clearing  upon  said 
lands,  as  the  only  clearing  now  upon  said  lands  was  done  prior  to  the 
time  of  the  purchase  by  plaintiffs.  That  the  only  improvement  upon 
said  lands  was  the  erection  of  said  house,  but  that  by  reason  of  said 
premises  not  being  kept  in  a  good  state  of  repair,  that  the  said  premises 
are  not  worth  as  much  as  when  plaintiffs  purchased  same. 

3.  In  Answer  to  paragraph  III  of  said  Bill  of  Complaint,  this  defendant 
has  no  knowledge  of  any  such  agreement  as  is  therein  set  forth,  so  leaves 
plaintiffs  to  their  proofs. 

4.  Defendant  in  answer  to  paragraph  IV  of  said  Bill  of  Complaint 
denies  that  plaintiffs  are  residing  temporarily  in  Bay  County,  but  insists 
that  they  have  removed  from  Ogemaw  permanently.  Defendant  denies 
each  and  every  allegation  contained  in  said  paragraph  except  as  herein- 
after stated,  as  follows:  That  at  a  considerable  time  prior  to  the  time 
that  plaintiffs  removed  to  Bay  County,  some  question  arose  as  to  the  title 
to  a  portion  of  said  lands,  and  that  in  order  to  clear  such  title,  the  said 
plaintiffs  and  this  defendant  joined  in  the  signing  of  a  notice  of  re-con- 


§  185A]  FORFEITURE  WHEN   SUSTAINED  381 

veyance  which  was  subsequently  published  in  the  Herald-Times,  a  news- 
paper circulating  in  said  County  of  Ogemaw,  and  that  by  reason  of  the 
nature  of  the  proceeding  the  said  plaintiffs  were  advised  at  that  time 
that  said  defendant  was  the  owner  of  said  lands  subject  to  the  land 
contract  possessed  by  said  plaintiffs.  That  prior  to  the  time  that  plain- 
tiffs moved  to  Bay  County,  this  defendant  was  insisting  upon  payment 
of  the  amount  then  due  upon  the  said  contract,  and  said  plaintiffs  stated 
to  this  defendant  that  they  expected  to  get  the  money  from  Jacob  C. 
Weinberg,  of  Prescott,  Michigan,  with  which  to  pay  this  defendant,  and 
shortly  thereafter  plaintiffs  moved  from  said  County  of  Ogemaw; 
thereafter  this  defendant  wrote  to  plaintiffs  and  advised  them 
that  Jacob  C.  Weinberg  would  not  make  them  the  loan  on  said  lands. 
Plaintiffs  later  wrote  to  this  defendant  stating  in  effect  that  they  expected 
to  obtain  a  loan  from  a  banker  in  Kawkawlin,  whereupon  this  defendant 
called  up  the  banker  referred  to  by  them,  by  telephone,  in  respect  to 
such  loan,  said  banker  then  and  there  stating  to  said  defendant  that  he 
did  not  care  to  make  such  loan.  Then  later,  on  or  about  the  25th  day  of 
May,  1916,  said  defendant  caused  to  be  sent  to  each  of  said  plaintiffs  a 
letter,  therein  stating  in  words  and  figures  as  set  forth  in  the  annexed 
Exhibit  A.  That  this  defendant  did  not  receive  any  reply  to  said  letter 
nor  did  either  of  said  plaintiffs  communicate  with  this  defendant  in  any 
manner. 

That  subsequent  thereto  and  on  or  about  the  fourth  day  of  August. 
A.  D.  1916,  this  defendant  caused  to  be  served  upon  the  said  plaintiffs 
and  upon  the  occupants  of  said  lands  a  notice  declaring  a  forfeiture  of 
said  land  contract  which  said  notice  and  proof  of  service  thereon  is  in 
words  and  figures  as  set  forth  in  the  annexed  Exhibit  B. 

Defendant  denies  that  plaintiffs  ever  at  any  time  advised  this  defendant 
that  they  had  any  private  understanding  as  to  any  extension  of  time 
within  which  to  make  the  payments  as  provided  in  said  land  contract 
and  also  denies  that  plaintiffs  made  improvements  on  said  land  which 
at  the  present  time  enhances  the  value  of  said  land  any  more  than  the 
said  lands  were  worth  at  the  time  of  the  purchase  of  same  by  plaintiffs 
under  said  land  contract. 

5.  This  defendant,  in  answer  to  paragraph  V  of  this  Bill  of  Complaint, 
while  admitting  that  one  Charles  W.  Hitchcock,  called  upon  him  at  his 
bank  in  the  Village  of  Prescott,  Ogemaw  County,  Michigan,  in  respect  to 
said  land  contract,  that  Mr.  Hitchcock  claimed  to  have  in  his  possession 
a  duplicate  copy  of  said  land  contract  and  this  defendant  then  and  there 
stated  the  amount  that  plaintiffs  had  paid  upon  contract.  This  defendant 
further  denies  that  said  Mr.  Hitchcock  tendered  to  this  defendant  any 
money  to  be  applied  upon  said  land  contract. 

6.  This  defendant,  in  Answer  to  paragraph  VI  of  said  Bill  of  Com- 
plaint, denies  that  any  person,  in  behalf  of  said  plaintiffs,  has  at  any 
time  or  place  tendered  to  him  the  amount  remaining  unpaid  upon  said 
contract  or  any  portion  of  the  costs  or  expenses  incident  to  the  Declara- 
tion of  Forfeiture  of  said  land  contract;  that  no  person  has  conversed  or 
communicated  with  the  defendant  in  respect  to  this  defendant  giving  a 


382  THE  LAW  0F  LAND  CONTRACTS  [§  185 A 

deed  of  the  said  premises  or  in  any  manner  affecting  the  rights  of  said 
plaintiffs. 

7.  This  defendant,  in  answer  to  paragraph  VII  of  said  Bill  of  Com- 
plaint, denies  that  plaintiffs  have  ever  suggested  to  the  said  defendant 
that  they  are  ready  and  willing  to  pay  the  balance  remaining  due  and 
unpaid  upon  said  land  contract. 

8.  This  defendnt  denies  the  right  of  said  plaintiffs  to  the  relief  as 
prayed  in  said  Bill  of  Complaint,  and  prays  to  be  dismissed  with  his 
reasonable  costs  and  charges  in  this  behalf  most  wrongfully  sustained. 

Affirmative  Matter  in  the  Nature  of  a  Cross-Bill. — The  said  James 
McKay,  defendant  named  in  the  Bill  of  Complaint  filed  herein,  for  further 
equitable  relief,  claims  the  benefit  of  a  cross-bill  and  bases  his  right  to 
same  on  the  facts  heretofore  admitted  as  well  as  the  additional  facts 
herein  set  forth. 

First:  This  defendant  respectfully  shows  unto  the  court  that  in  said 
land  contract  it  is  expressly  provided,  "that  if  the  said  party  of  the 
second  part  shall  fail  to  perform  this  contract  or  any  part  of  same,  and 
shall  remain  in  arrears  for  thrity  days  after  notice  to  said  second  parties 
given  by  a  letter  addressed  to  said  second  parties  at  the  addresses 
herein,  that  thereupon,  the  said  first  party  shall  have  the  right  to  declare 
this  contract  void  and  to  retain  all  the  moneys  which  may  have  been 
paid  hereon  and  the  improvements  which  may  have  been  placed  on  said 
lands,  as  stipulated  damages  for  the  non-performance  of  this  contract 
as  a  reasonable  rental  for  said  lands,  and  may  consider  and  treat  said 
parties  of  the  second  part  as  its  tenant,  holding  over  without  permission, 
and  may  take  immediate  possession  of  said  lands  and  remove  said  parties 
of  the  second  part  therefrom." 

That  upon  default  being  made  in  the  payment  of  said  sum  of  two  hun- 
dred dollars  on  April  fourth,  1916,  that  this  defendant  caused  to  be  sent 
to  the  said  plaintiffs  the  letter  as  set  forth  in  paragraph  IV  of  said  Bill 
of  Complaint  in  words  and  figures  as  contained  in  said  Exhibit  A,  and 
after  waiting  more  than  thirty  days  within  which  the  said  plaintiffs  could 
have  complied  with  the  terms  of  the  said  land  contract  in  the  payment  of 
the  moneys  then  due  upon  said  land  contract,  this  defendant,  on  or 
about  the  fourth  day  of  August,  A.  D.  1916,  caused  to  be  served  upon  the 
said  plaintiffs  the  notice  declaring  a  forfeiture  of  said  contract  as  admit- 
ted by  plaintiffs  in  paragraph  IV  in  said  Bill  of  Complaint  in  words  and 
figures  as  contained  in  said  Exhibit  B. 

Second:  That  said  notice  herein  referred  to  as  Exhibit  B,  also 
demanded  of  the  said  plaintiffs  that  they  execute  a  release  of  all  rights 
and  claims  theretofore  possessed  by  them  or  either  of  them  in  said  lands 
and  premises,  to  this  defendant,  this  defendant  then  and  there  offering  to 
pay  the  expense  of  executing  such  releases,  and  that  in  default  of  the 
execution  of  such  releases,  this  defendant  gave  notice  that  he  would  take 
such  proceedings  as  he  deemed  advisable  to  remove  the  cloud  to  his  title; 
that  said  notice  also  required  of  the  said  planitiffs  to  quit,  surrender  and 
deliver  up  possession  to  him  of  the  lands  described  in  said  land  contract; 


§  185A]  FORFEITURE  WHEN   SUSTAINED  383 

but  said  plaintiffs  have  hitherto  refused  to  execute  such  releases  of  their 
interest  in  said  lands  under  said  land  contract. 

Third:  That  the  said  land  contract  in  the  possession  and  control  of 
said  plaintiffs  and  the  rights  claimed  in  said  lands  as  in  said  Bill  of 
Complaint  particularly  set  forth,  constitutes  a  cloud  on  the  title  of  this 
defendant  to  the  lands  and  premises,  and  has  the  effect  to  greatly  depre- 
ciate the  value  thereof  and  to  cloud  the  title  heretofore  possessed  by 
the  vendors  in  said  land  contract  named  and  their  assigns  as  set  forth 
herein. 

Fourth:  Forasmuch,  therefore,  as  this  defendant  is  without  remedy 
in  the  premises  except  in  a  court  of  equity,  this  defendant  prays: 

(a)  That  said  plaintiffs  herein  may,  if  they  can  show  why  this  defend- 
ant should  not  have  the  relief  hereby  prayed,  without  oath,  all  answer 
on  oath  being  hereby  waived,  full,  true,  direct  and  perfect  answer  make 
to  all  and  singular  the  matters  herein  stated  and  charged. 

(b)  And  that  the  said  land  contract  may  be  decreed  to  be  null  and  void 
and  to  be  a  cloud  upon  the  title  of  said  defendant  to  the  said  lands  and 
to  be  delivered  up  to  be  cancelled. 

(c)  And  that  the  record  of  said  land  contract  that  may  remain  in  the 
office  of  the  register  of  deeds  for  the  County  of  Ogemaw  be  discharged 
and  decreed  to  be  null  and  void. 

(d)  And  that  this  defendant  have  leave  to  cause  such  decree  to  be 
recorded  in  the  office  of  the  said  register  of  deeds  of  said  County  of 
Ogemaw. 

(e)  And  that  this  defendant  may  have  such  other  and  further  relief 
in  the  premises  as  shall  be  agreeable  to  equity  and  good  conscience. 

(f)  And  this  defendant  will  ever  pray. 

James    McKay,    Defendant. 
William  T.  Yeo, 

Attorney  for  Defendant, 

Business  Address,  West  Branch,  Mich. 

(Verification.) 

(d)  Brief  for  Plaintiffs. — This  court  has  repeatedly  in  its  opinions  held 
against  strict  foreclosure.  If  the  defendant  in  this  case  prevails  we  sub- 
mit that  the  entire  proceeding  smacks  of  a  strict  foreclosure  and  ought 
not  to  be  approved  if  plaintiffs  were,  even  after  notice  of  forfeiture,  in 
position  to  make  the  defendant  whole.  "A  party  seeking  relief  against 
forfeiture  should  tender  sufficient  to  make  the  other  party  whole." 
Morris  v.  Hoyl,  11  Mich.  9.  Stickney  v.  Parmenter,  35  Mich.  237.  Hick- 
man v.  Chaney,  155  Mich.  217.    Sweet  v.  Purinton,  166  N.  W.  161. 

In  this  case  there  was  no  actual  tender,  but  every  other  thing  was  done 
which  could  be  done  under  the  circumstances,  and  that  immediately 
after  notice  of  forfeiture.  We  believe  that  plaintiffs  being  in  possession 
defendant  had  two  remedies, — 1st:  either  to  begin  summary  proceed- 
ings, or  second,  to  begin  foreclosure  proceedings.  In  either  of  these 
events  plaintiffs  would  have  had  the  right  to  redeem. 


3S4  THE  LAW  OF  LAND  CONTRACTS  [§  185 A 

n  the  service  of  a  notice  of  forfeiture  divested  plaintiffs  of  all  their 
right  in  said  property  then  defendant  has  no  reason  to  come  into  a  court 
of  equity  and  ask  to  have  a  cloud  removed  from  his  title  because  if  this 
mere  service  of  a  notice  of  forfeiture  divests  plaintiffs  of  their  rights 
in  said  property,  then  said  court  would  have  nothing  to  take  away  from 
them  because  they  have  nothing  to  do  with  it.  3  C.  L.  1915,  Sec.  13253, 
Lambton  Loan  &  Investment  Co.  v.  Adams,  132  Mich.  350. 

The  above  case  is  short  and  we  think  to  the  point  because  of  the  fact 
that  if  plaintiffs  were  in  possession  no  steps  were  taken  by  defendant  to 
oust  them. 

(e)  Brief  for  Defendant. — All  the  rights  of  plaintiffs  have  become 
forfeited  at  law  as  was  held  in  the  case  of  Pendil  v.  Union  Mining  Co., 
64  Mich.  174.  The  court  is  not  asked  to  declare  the  forfeiture  but  to 
ascertain  whether  or  not  the  complete  forfeiture  exists  and  if  so  to 
remove  the  cloud.  The  Bill  does  not  ask  the  court  to  do  the  thing  but  to 
ascertain  whether  it  has  been  done  and  if  so  to  declare  its  effect  upon 
the  title  to  complainants'  property. 

In  the  case  of  Donnelly  v.  Lyons,  173  Mich.  515,  the  facts  therein  are 
similar  as  to  claim  of  attempt  to  make  payment  after  notice  of  forfeiture 
and  that  defendant  should  have  resorted  to  some  other  action,  in  which 
case  the  court  in  reviewing  the  authorities  therein  stated  found  in 
respect  to  tender:  "It  does  not  seem  reasonable,  however,  that  if  he  had 
made  a  bona  fide  offer  to  carry  out  the  contracts  he  could  not  have  done 
so.  He  did  not  have  any  difficulty  in  making  a  tender  both  to  her  and 
her  attorney  after  notice  of  forfeiture."  There  certainly  could  be  no 
necessity  of  bringing  a  personal  action  under  these  facts  where  no  per- 
sonal occupancy  or  interference  would  be  encouraged  in  the  taking  of 
possession,  and  therein  referring  to  the  case  of  Lambton  Loan  &  Invest- 
ment Co.  v.  Adams,  132  Mich.  350,  the  said  court  held:  "'The  proceed- 
ing commented  upon  was  purely  a  possessory  action  and  no  such  pro- 
ceedings are  necessary  in  the  instant  case.'  " 

(f)  Holding  of  the  Court. — It  is  clear  that  a  decree  for  specific  per- 
formance cannot  be  made.  Treating  the  Bill  as  amended  so  as  to  ask 
for  relief  from  the  forfeiture  and  extend  to  their  limits  the  rules  govern- 
ing the  granting  of  relief  in  such  cases,  the  decree  below  may  be  modified 
so  as  to  relieve  plaintiffs  from  the  forfeiture  upon  the  condition  that 
within  sixty  days  after  entry  of  decree  in  this  court  they  pay  to  defendant 
or  to  the  Register  of  the  Circuit  Court  for  the  County  of  Ogemaw  the 
unpaid  purchase  price  of  land  with  all  arrearages  of  interest  and  any 
sum  paid  by  defendant  for  taxes  upon  the  land  with  costs  of  both  courts, 
upon  which  payment  defendant  shall  execute  and  deliver  the  conveyance 
in  accordance  with  the  contract.  In  default  of  which  payment  defendant 
shall  have  the  relief  granted  him  in  the  court  below  with  costs  of  both 
courts. 

HUBBELL  v.  OHLER,  213  Mich.  664— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 


§  185A]  FORFEITURE  WHEN   SUSTAINED  385 

(c)  Answer  to  Bill. 

(d)  Answer  of  Plaintiff  to  the  Cross-Bill  of  Defendants. 

(e)  The  Contract  Involved— "Exhibit  B." 

(f)  Transfer  of  the  Contract  to  the  Plaintiff  Hubbell— "Exhibit  C." 

(g)  Notice  of  Forfeiture— "Exhibit  A." 
(h)  Decree. 

(i)   Brief  of  Counsel,  John  M.  Dunham,  for  Plaintiff. 

(j)   Brief  of  Counsel,  Ellis  &  Ellis,  and  Clark  H.  Gleason,  for  Defendant 
HUBBELL  v.  OHLER,  213  Mich.  644— 

(a)  Brief  Statement  of  Fact. 

This  was  an  action  for  specific  performance  brought  against  the  defend- 
ants upon  a  land  contract  wherein  the  plaintiff  had  paid  one-half  the 
purchase  price  by  the  transfer  of  other  property,  leaving  a  balance  due 
upon  the  contract  of  $3000.00.  The  contract  was  in  the  usual  form  with 
the  exception  that  it  contained  a  clause  reading  as  follows: 

"That  it  shall  be  lawful  for  said  parties  of  the  first  part  at  any  time 
after  the  violation  or  non-fulfillment  of  any  of  said  agreements  on  the 
part  of  the  said  parties  of  the  second  part,  to  sell  or  convey  said  land 
or  any  part  thereof  to  any  other  person  whatsoever." 

The  plaintiff  having  become  in  arrears  upon  the  interest  and  taxes  upon 
said  contract  caused  a  notice  of  forfeiture  to  be  served  upon  the  plaintiff, 
forfeiting  the  contract,  and  declaring  all  of  plaintiff's  rights  thereunder 
at  an  end. 

A  few  days  later,  the  vendor  sold  and  conveyed  said  land  to  one  Byers 
for  a  valuable  consideration,  and  Byers  at  once  took  possession  of  the 
property  and  since  lived  upon  it. 

The  plaintiff  after  he  purchased  the  property  did  not  occupy  it,  so  that 
possession  was  obtained  without  resort  to  legal  proceedings. 

Upon  a  trial  in  the  lower  court,  plaintiff's  bill  of  complaint  was  dis- 
missed and  a  decree  was  entered  ordering  plaintiff  to  surrender  pos- 
session of  the  property. 

Upon  appeal  to  the  Supreme  Court,  the  decree  of  the  lower  court  was 
modified  so  as  to  permit  the  plaintiff  relief  from  the  forfeiture,  upon 
certain  conditions. 

(b)  Bill  of  Complaint. — State  of  Michigan.  In  the  Circuit  Court  for 
the  County  of  Kent,  in  Chancery; 

To  the  Circuit  Court  for  the  County  of  Kent,  in  Chancery: 
Your  plaintiff,  Jeremiah  C.  Hubbell,  of  the  City  of  Grand  Rapids,  said 
county,  represents  unto  this  court  as  follows: 

I.  That  on  the  29th  day  of  June,  1917,  Louis  J.  Ohler  and  Agnes  A 
Ohler  were  seized  and  possessed  in  fee  simple  of  the  following  described 
lands  and  premises,  lying  and  being  situated  in  the  Township  of  Wyoming, 
County  of  Kent,  and  State  of  Michigan,  known  and  described  as  follows: 

"The  east  half  (£)  of  the  southwest  quarter  (J)  of  section  fifteen  (15) 
In  township  six  (6)  north  of  range  twelve  (12)  west,  except  nine  and 
one-half  (9 J)  acres  in  width  from  the  west  side  thereof,  and  except  a 
parcel  conveyed  in  deed  recorded  in  liber  399  of  deeds,  on  page  578." 


386  THE  LAW  0F  LAND  CONTRACTS  [§  185 A 

And  on  said  last  mentioned  date,  the  said  Louis  P.  Ohler  and  Agnes  A. 
Ohler  entered  into  a  certain  land  contract  with  Andrew  D.  Boomsma 
and  Lucy  Boomsma,  husband  and  wife,  a  copy  of  said  contract  being 
hereto  attached  and  marked  Exhibit  A,  and  made  a  part  of  this  bill 
of  complaint;  said  contract  was  for  the  purchase  of  the  land  herein- 
before described  for  the  sum  of  six  thousand  ($6000.00)  dollars,  and 
provided  that  three  thousand  dollars  was  paid  upon  the  execution  of 
the  contract,  leaving  unpaid  the  sum  of  three  thousand  ($3000.00)  dol- 
lars, with  a  payment  on  principal  of  $100.00  to  be  made  on  the  1st  day  of 
August,  1919,  and  $100.00  annually  therafter,  with  interest  payable  semi- 
annually. 

II.  Plaintiff  further  alleges  that  he  purchased  the  contract  interest  of 
Andrew  D.  Boomsma,  whose  wife  Lucy  had  died  since  the  making  of 
said  contract,  on  the  1st  day  of  August,  1918,  and  has  an  assignment  from 
said  Andrew  D.  Boomsma  of  the  same,  a  copy  of  said  assignment  being 
hereto  attached  and  marked  Exhibit  B,  and  made  a  part  of  this  bill  of 
complaint. 

III.  Plaintiff  further  alleges  that  in  the  taking  of  said  assignment  he 
assumed  the  interest  from  the  date  of  said  contract  to  August  1st,  1918, 
together  with  the  taxes  on  said  land  for  the  year  1917,  which  past  due 
interest  and  taxes  this  plaintiff  paid  to  said  Louis  P.  Ohler,  who  re- 
ceipted for  the  same  to  him  and  who  thus  had  knowledge  during  the 
month  of  August,  1918,  that  this  plaintiff  had  purchased  the  contract 
interest  in  said  land  of  the  said  Andrew  D.  Boomsma. 

IV.  Plaintiff  alleges  that  he  immediately  took  possession  of  said  lands, 
but  he  did  not  move  thereon,  as  he  is  a  single  man,  and  did  not  pur- 
chase said  farm  for  the  purpose  of  occupying  it,  but  through  his  agents 
put  a  sign  on  the  house  on  said  farm  for  the  sale  of  said  premises, 
looked  after  the  growing  crops,  advertised  the  farm  for  sale,  and  in 
various  ways  let  it  become  known  that  he  had  bought  said  premises. 

V.  Plaintiff  further  says  that  about  a  week  ago,  on,  to-wit,  April  24, 
1919,  he  sent  his  agent  out  to  said  farm  to  make  some  repairs  on  the 
buildings,  as  he  had  a  prospective  purchaser,  whom  he  expected  to  take 
out  there  the  following  day,  and  that  when  his  agent  returned  to  town 
he  reported  to  this  plaintiff  that  one  Francis  M.  Byers,  was  in  posses- 
sion of  said  farm,  had  moved  in  the  dwelling  house  and  was  plowing 
and  said  Byers,  who  is  also  made  a  defendant  herein,  informed  plain- 
tiff's agent,  when  questioned  about  what  he  was  doing  there,  that  he 
had  purchased  said  farm  of  said  Louis  P.  Ohler;  that  he  had  been  there 
at  that  time,  for  about  two  weeks;  that  he  had  a  deed  of  said  property  and 
had  paid  said  Louis  P.  Ohler  the  sum  of  forty-two  hundred  ($4200.00) 
dollars  for  said  farm,  and  in  addition  thereto  had  assumed  a  mortgage 
on  said  farm,  given,  as  plaintiff  believes,  by  said  Ohler  and  wife  of  twenty- 
two  hundred  ($2200)  dollars,  making  the  total  purchase  price  of  the  same 
the  sum  of  sixty-four  hundred   ($6400.00)  dollars. 

VI.  Plaintiff  alleges,  upon  information  and  belief,  that  at  the  time  said 
Louis  P.  Ohler  and  wife  made  the  contract  of  said  farm  to  said  Andrew  D. 


§  185A] 


FORFEITURE  WHEN   SUSTAINED  387 


and  Lucy  Boomsma,  as  hereinbefore  stated,  that  said  farm  was  encum- 
bered by  mortgage  in  the  sum  of  $2200.00  but  said  $2200.00  was  included 
in  said  contract  price  of  $6000.00. 

VII.  Plaintiff  further  alleges  that  by  the  terms  of  said  contract,  the 
interest  was  due  thereon  semi-annually,  and  that  the  interest  had  not 
been  paid  by  this  plaintiff,  which  became  due  on  the  1st  day  of  February, 
1919,  and  this  plaintiff  alleges  that  as  soon  as  he  learned  of  the  pre- 
tended sale  of  said  farm  by  the  said  Louis  P.  Ohler  and  his  wife,  to 
the  said  Francis  M.  Byers,  and  on,  to-wit,  the  28th  day  of  April,  1919, 
he  went  to  the  place  of  business  of  said  Louis  P.  Ohler,  in  the  village  of 
Jennison,  and  made  him  a  legal  tender  of  the  interest  that  was  due  on 
the  said  1st  day  of  February,  together  with  the  interest  on  the  same 
to  the  date  of  said  tender  and  also  at  the  same  time  tendered  to  said 
Louis  P.  Ohler  the  sum  of  one  and  10/100  dollars,  to  cover  the  costs  of 
the  service  of  a  notice  which  had,  a  few  days  previous,  been  served  on 
him  by  Clark  B.  Gleason,  as  attorney  for  said  Ohler,  and  plaintiff  hereby, 
for  the  purpose  of  keeping  said  tender  good,  pays  the  clerk  of  this  court 
the  amount  of  said  tender,  said  notice  purporting  to  terminate  plaintiff's 
tenancy  in  said  land  and  to  declare  his  interest  forfeited. 

VIII.  Plaintiff  further  alleges  and  expressly  charges  the  truth  to  be, 
that  the  said  Louis  P.  Ohler  and  Agnes  A.  Ohler,  and  the  said  Francis 
M.  Byers,  who  claim  that  they  have  sold  said  land,  and  purchased  the 
same,  that  the  said  Byers,  if  he  did  purchase  said  land,  purchased  it  with 
full  knowledge  of  the  contract  interest  of  the  said  plaintiff  and  that 
said  pretended  sale  was  a  mere  sham  and  fraud  and  made  for  the  pur- 
pose of  cheating  and  defrauding  this  plaintiff  out  of  his  interest  in  said 
land. 

IX.  Plaintiff  further  alleges  that  by  virtue  of  Act  No.  91  of  Public  Acts 
of  Michigan  for  the  year  1911,  it  expressly  provided  that  a  tax  of  50  cents 
on  each  $100  due  and  unpaid  on  a  land  contract  should  be  paid  to  the 
county  treasurer  of  the  county  where  said  lands  were  situated,  and  that 
until  the  said  sum  was  paid,  the  holder  of  said  contract  could  take  no  steps 
to  foreclose  said  contract,  or  to  in  any  way  enforce  payment  of  the  same 
until  said  tax  was  paid,  and  plaintiff  alleges  that  at  the  time  of  the 
service  of  said  notice  so  served  upon  him  by  the  said  Clark  H.  Gleason 
that  said  tax  had  not  been  paid  by  the  said  Louis  P.  Ohler,  or  by  anyone 
in  his  behalf,  and  that  by  reason  of  such  failure  to  pay  said  tax,  that 
the  service  of  said  notice  was  a  mere  nullity  and  in  no  way  affected  the 
right  of  this  plaintiff  in  said  land. 

X.  Plaintiff  alleges  that  the  said  Louis  P.  Ohler  and  Agnes  A.  Ohler, 
and  Francis  M.  Byers,  are  conspiring  together  to  cheat  and  defraud  this 
plaintiff,  and  this  plaintiff  fears  that  unless  they  and  each  of  them  are 
restrained  by  the  order  and  injunction  of  this  court,  that  they  may  seek 
to  sell  and  convey  said  farm  to  some  innocent  purchaser,  and  thus 
render  it  more  difficult  for  this  plaintiff  to  recover  possession  of  said 
farm.  For  as  much  as  this  plaintiff  is  without  remedy  in  the  premises 
except  in  a  court  of  equity,  this  plaintiff  prays: 


388  THE  LAW  0F  LAND  CONTRACTS  [§  185A 

(a)  That  the  said  Louis  P.  Ohler,  Agnes  A.  Ohler  and  Francis  M. 
Byers,  who  are  made  party  defendants  to  this  bill,  make  full,  true  and 
direct  answer  to  the  same,  but  not  under  oath  (their  answers  under  oath 
being  hereby  waived). 

(b)  That  the  pretended  forfeiture,  claimed  by  the  said  Louis  P.  Ohler 
and  Agnes  A.  Ohler  against  this  plaintiff  of  said  contract,  be  set  aside 
and  held  for  naught,  and  that  this  plaintiff  be  allowed  to  proceed  with 
the  execution  of  said  land  cotract  so  assigned  to  him,  as  hereinbefore 
stated. 

(c)  That  the  said  Louis  P.  Ohler  and  Agnes  A.  Ohler  be  decreed  to 
accept  at  the  proper  time  and  in  the  proper  manner  of  the  performance 
of  said  contract  by  said  plaintiff  according  to  its  terms. 

(d)  That  the  said  Louis  P.  Ohler  and  Agnes  A.  Ohler  and  Francis  M. 
Byers  may  be  restrained  by  the  order  and  injunction  of  this  court,  from 
in  any  manner  selling,  mortgaging,  or  disposing  of  plaintiff's  interest  in 
said  land  and  premises  until  the  further  order  and  direction  of  this  court. 

(e)  That  any  deed  that  may  have  been  executed  by  the  said  Louis  P 
Ohler  and  Agnes  A.  Ohler  to  the  said  Byers,  of  said  premises,  be  set 
aside,  or  if  it  shall  be  determined  by  this  court  that  an  actual  sale  was 
made  to  the  said  Byers  in  good  faith  on  his  part,  and  for  a  valuable 
consideration,  without  notice  of  the  rights  of  plaintiff  therein,  then  said 
plaintiff  prays  tha"  an  accounting  may  be  had  between  himself  and  the 
said  Louis  P.  Ohlei  and  Agnes  A.  Ohler  as  to  the  amount  of  the  equity 
of  plaintiff  in  said  lands,  and  that  the  said  Louis  P.  Ohler  and  the  said 
Agnes  A.  Ohler  be  decreed  to  pay  to  this  plaintiff  such  a  sum  as  plaintiff's 
equity  may  be  in  said  land. 

(f)  And  that  said  plaintiff  may  have  such  other  and  further  relief  in 
the  premises  as  equity  may  require  and  as  to  this  court  may  seem  meet. 

And  plaintiff  will  ever  pray,  etc. 

JEREMIAH  C.  HUBBELL, 
HARTLEY  E.  HENDRICK, 
Attorney  for  Plaintiff, 
208  Houseman  Bldg., 
Grand  Rapids,  Michigan. 

(Verification.) 

(c)  Answer  to  Bill. —  (Caption.)     The  defendants  answering  say: 

1.  Defendants  Ohler  admit  the  allegation  of  the  first  clause  of  said 
bill  as  to  the  title  and  ownership  of  the  land  therein  described  and  the 
execution  of  a  contract  of  sale  thereof,  and  that  Exhibit  A  is  substantially 
a  copy  thereof.  They  do  not  admit  the  interpretation  of  said  contract 
is  correct  as  set  out  in  said  bill.  Defendant  Byers  has  no  knowledge 
sufficient  to  answer,  except  the  ownership  of  the  land,  and  that  he 
admits. 

2.  Defendant  Louis  P.  Ohler  admits  on  information  the  assignment  of 
the  contract,  but  has  no  knowledge  of  the  correctness  of  Exhibit  B.  The 
other  defendants  have  no  knowledge  sufficient  to  answer. 


§  185AJ  FORFEITURE  WHEN   SUSTAINED  389 

3.  Defendant  Louis  P.  Ohler  admits  payment  of  taxes  and  interest  to 
him  at  one  time,  and  that  he  gave  a  receipt  for  them,  but  he  has  forgotten 
the  date  and  the  name  of  the  party,  but  he  supposes  it  was  plaintiff.  The 
money  came  to  him  in  checks  of  Hartley  E.  Hendrick.  The  other  defend- 
ants have  no  knowledge  sufficient  to  answer. 

4.  Defendants  have  no  knowledge  of  the  allegations  in  the  fourth  clause 
of  the  bill. 

5.  Defendant  Byers  admits  he  is  in  possession  of  said  farm,  is  living 
thereon  and  is  working  it,  and  that  he  bought  it  and  that  he  told  a 
man  who  came  there  recently  said  facts,  but  he  denies  telling  him  he 
paid  forty-two  hundred  dollars  for  it  and  assumed  a  mortgage  of  twenty- 
two  hundred  dollars;  that  he  told  him  he  traded  a  stock  of  goods  for  it 
he  once  was  offered  in  trade  forty-two  hundred  dollars  for,  and  that  it 
would  cost  him  about  four  thousand  dollars,  all  told,  in  trade. 

The  other  defendants  have  no  knowledge,  except  they  admit  the  sale 
of  said  farm  to  defendant  Byers. 

6.  They  admit  the  allegations  of  clause  six  of  said  bill. 

7.  Defendant  Louis  P.  Ohler  denies  that  a  legal  tender  of  the  interest 
due  February  1,  1919,  was  ever  at  any  time  made  to  defendant  by  plain- 
tiff. Whether  or  not  he  has  paid  any  money  into  court,  he  has  no 
knowledge. 

The  other  defendants  have  no  knowledge  sufficient  to  answer. 

8.  Defendants  admit  that  said  Byers  purchased  said  land  with  knowl- 
edge that  plaintiff  had  at  one  time  claimed  to  have  a  contract  of  it, 
but  shows  unto  the  court  he  was  told,  when  he  bought,  the  contract 
interest  of  said  plaintiff  had  been  forfeited  and  was  at  an  end.  Defend- 
ants show  they  had  no  purpose  of  cheating  or  defrauding  ony  one,  and 
did  not  do  so. 

9.  Defendants  admit  that  the  statutes  provide  for  a  tax  as  set  forth 
in  the  ninth  paragraph  of  said  bill,  but  allege  that  the  notice  served 
by  said  Gleason  was  not  for  the  purpose  of  enforcing  said  contract, 
but  was  to  forfeit  the  same,  and  for  that  reason  the  payment  of  the  tax 
was  not  a  preliminary  requisite.  They  also  say  the  tax  is  payable  before 
the  contract  could  be  assigned,  and  hence  plaintiff  has  no  standing  in 
a  court  of  equity  under  an  assignment  of  the  contract,  and  no  right  to 
enforce  it  without  payment  of  the  tax.  If  in  this  they  err,  they  pray  to 
be  permitted  to  pay  the  tax. 

10.  Defendants  deny  all  charges  of  fraud  or  intent  to  defraud  as  alleged 
in  clause  ten  of  said  bill,  and  deny  all  its  charges  of  conspiring  together 
for  any  wrongful  purpose. 

11.  And  these  defendants  by  way  of  a  cross-bill,  allege  as  follows,  viz.: 
1.  That  there  has  been  no  one  in  actual  occupation  of  said  farm  since 

it  was  vacated  by  said  Boomsma  until  defendant  Byers  bought  it  and  went 
into  possession.  That  plaintiff  never  has  been  in  actual  possession  of 
the  land.  That  during  all  the  fall  and  winter  of  1918  and  winter  and 
spring  of  1919  plaintiff  has  suffered  various  and  sundry  persons  to  commit 
waste  and  damage  to  the  said  lands  and  appurtenances  contrary  to  the 


390  THE  LAW  OF  LAND  CONTRACTS  [§  185 A 

terms  of  said  contract;  that  people  have  been  there  and  carried  away 
numerous  doors  and  hinges  from  the  dwelling  house,  and  committed  other 
depredations,  and  taken  the  stanchions  from  the  stable  in  the  barn  on 
said  premises;  that  the  barnyard  fences  are  gone,  and  that  there  are 
practically  no  fences  on  the  farm;  that  he  has  suffered  the  farm  to 
grow  up  to  weeds,  and  the  buildings  to  be  destroyed;  that  the  roof  of 
the  house  and  barn  leak  very  badly,  so  that  the  plastering  has  fallen 
off  the  house  in  some  places;  that  the  window  lights  are  largely  broken 
out  in  both  the  house  and  barn  and  things  generally  in  a  run-down  con- 
dition when  defendant  Byers  purchased  and  took  possession. 

2.  That  six  months'  interest  came  due  on  the  contract  February  1. 
1919,  and  the  taxes  for  1918  became  due  in  December,  1918,  neither  of 
which  have  been  paid;  that  defendant,  Louis  P.  Ohler,  demanded  the 
same  several  times  without  avail,  and  he  finally  put  the  same  into  the 
hands  of  C.  H.  Gleason,  his  attorney,  who  notified  plaintiff  and  his  attor- 
ney of  the  payments  past  due,  and  demanded  that  they  pay  them,  without 
avail,  and  on  April  12,  1919,  said  attorney  served  a  notice  on  said  plaintiff 
forfeiting  the  said  contract;  that  attached  hereto,  marked  Exhibit  A  is 
a  copy  of  said  notice  served  as  aforesaid  on  plaintiff,  April  12,  1919.  That 
there  was  no  one  in  possession  of  the  farm  at  the  time  of  the  service 
of  said  notice,  and  defendant  soon  after  took  possession  of  said  farm, 
and  later  sold  it  to  defendant,  Byers,  in  good  faith,  and  had  been  in 
undisturbed  possession  for  several  weeks  when  this  suit  was  begun. 

3.  That  defendant  Ohler  sold  said  farm  for  all  it  was  worth  in  its 
present  condition,  and  got  only  about  the  amount  out  of  it  that  was  due 
him  on  the  old  contract  for  it.  He  did  not  sell  the  farm  to  make  money, 
though  he  sold  it  for  all  it  was  worth  in  its  present  condition,  but  sold 
it  because  it  was  necessary  some  one  go  on  it  to  preserve  it,  and  to 
prevent  the  buildings  from  destruction  and  from  being  carried  away; 
that  defendant  Ohler  placed  the  matter  in  the  hands  of  his  attorney, 
C.  H.  Gleason,  and  Mr.  Gleason  informed  him  he  saw  said  plaintiff  and 
told  him  of  the  condition  the  farm  was  in  and  the  need  of  repairs  to  the 
buildings  and  that  the  interest  and  taxes  were  unpaid,  and  said  plaintiff 
replied  he  bought  the  place  against  his  better  judgment,  that  he  traded 
other  encumbered  property  for  it,  and  that  he  had  only  about  eleven 
hundred  dollars  on  it,  and  would  not  have  traded  for  it  on  his  own 
judgment  but  because  of  a  contract  and  guaranty  he  had  from  Hartley 
E.  Hendrick  and  William  E.  DeGolia,  of  Grand  Rapids,  Michigan,  that 
he  should  not  lose  anything  on  the  purchase  and  the  reason  he  had  not 
paid  the  interest  and  taxes  was  because  they  refused  to  put  up  their 
two-thirds  thereof,  which  he  expected  them  to  do,  inasmuch  as  they 
were  to  share  the  profits  and  that  he  had  his  one-third  of  the  money 
ready.  He  said  he  had  no  use  for  the  farm  and  only  bought  it  because 
of  the  guaranty  aforesaid  that  he  should  make  some  money  out  of  it, 
and  he  would  like  to  get  back  a  part  at  least  of  the  money  it  had  cost 
him,  but  that  he  would  not  himself  live  on  the  farm,  or  work  it. 


§  185A]  FORFEITURE  WHEN   SUSTAINED  391 

4.  Defendants  further  aver  that  the  notice,  Exhibit  A,  legally  termi- 
nated plaintiff's  contract,  and  inasmuch  as  they  got  peaceable  posses- 
sion under  it,  they  can  hold  possession  thereof,  and  had  a  right  to  sell 
and  buy  the  farm  without  consent  of  the  plaintiff. 

5.  Defendants  therefore  pray: 

(a)  That  said  plaintiff  may  be  decreed  by  this  court  to  surrender  and 
deliver  up  said  contract  for  cancellation,  and  that  the  same  be  cancelled. 

(b)  That  they  may  have  such  other  and  such  further  relief  as  the 
nature  of  the  case  may  require. 

(c)  That  plaintiff  may  be  required  to  answer  this  cross-bill,  but  not 
under  oath,  his  answer  under  oath  being  waived. 

Louis  P.  Ohler, 
C.  H.  Gleason,  Agnes  A.  Ohler, 

Attorney  for  Defendants  and  Francis  M.  Byers, 

Cross-Plaintiffs.  Defendants. 

(d)  Answer  of  Plaintiff  to  the  Cross-Bill  of  Defendants.— (Caption.)  This 
plaintiff,  saving  and  reserving  to  himself  all  right  of  exception  to  said 
cross-bill,  for  answer  says: 

1.  Answering  paragraph  one  of  said  cross-bill  of  complaint,  plaintiff 
admits  that  he  did  not  actually  live  upon  the  farm  in  question  after  it 
was  vacated  by  the  said  Boomsma,  but  he  denies  that  he  has  not  been 
in  actual  possession  of  the  land.  He  denies  further  that  various  and 
sundry  persons  have  committed  waste  or  damage  to  said  land  and  build- 
ings, but  admits  that  the  said  buildings  were  not  and  for  some  time 
prior  to  plaintiff's  purchase,  had  not  been  in  good  condition. 

Further  answering  said  paragraph,  plaintiff  says  that  on  the  day  that 
he  learned  the  farm  had  been  sold  to  the  defendant,  Byers,  plaintiff  had 
sent  an  agent  out  to  said  premises  to  repair  the  roof  of  the  house 
and  barn  and  make  other  improvements.  Plaintiff  denies  said  farm 
had  grown  up  to  weeds  and  says  that  said  farm  and  said  crops  growing 
thereon,  when  the  purchase  was  made,  were  cared  for  and  harvested  by 
plaintiff. 

2.  Answering  paragraph  two,  plaintiff  admits  that  six  month's  interest 
became  due  on  the  contract  February  1st,  1919,  and  says  that  at  that 
time  Hartley  E.  Hendrick,  an  attorney  of  Grand  Rapids,  Michigan,  who 
was  then  acting  as  attorney  for  plaintiff  had  funds  of  plaintiff's  in  his 
possession  and  had  been  instructed  to  pay  said  interest  and  that  plain- 
tiff did  not  know  until  after  the  sale  had  been  made  to  said  Byers  that 
that  said  interest  had  not  been  paid  by  his  said  attorney,  nor  did  he 
know  that  the  1918  taxes,  due  in  December,  had  not  been  paid;  and 
plaintiff  denies  that  the  defendant,  Louis  P.  Ohler,  demanded  the  same 
several  times,  but  he  admits  that  a  so-called  notice  forfeiting  said  con- 
tract, was  served  upon  him  after  the  defendants,  Ohler,  had  made  the 
said  sale  to  the  said  Byers,  whether  or  not  said  defendants  have  a  copy 
of  said  notice  plaintiff  does  not  know,  as  defendants  failed  to  attach 
a  copy  of  the  same  to  their  cross-bill,  as  therein  alleged. 


392  THE  LAW  OF  LAND  CONTRACTS         [§  185 A 

Further  answering  said  paragraph,  plaintiff  denies  that  said  sale  was 
made  in  good  faith,  but  he  admits  that  the  said  Byers  had  been  in  pos- 
session for  several  weeks  when  this  suit  was  started. 

3.  Answering  paragraph  three,  plaintiff  denies  that  the  said  Ohler  got 
out  of  said  farm  only  what  was  due  him,  as  plaintiff  had  an  equity  of  a 
large  amount,  to-wit,  $3500.00  and  upwards,  in  said  property.  He  denies 
that  it  was  necessary  to  make  a  sale  to  preserve  said  property,  and 
charges  the  truth  to  be  that  he  seized  the  slightest  pretext  possible  as 
a  basis  for  a  so-called  or  alleged  forfeiture  of  said  contract;  that  said 
defendant  might  again  sell  said  property  for  a  large  amount  and  to  keep 
and  retain  the  amount  paid  in  by  plaintiff  and  his  assignor. 

Further  answering  said  paragraph  he  denies  each  and  every  allegation 
therein  contained,  excepting  that  he  did  state  to  Mr.  Gleason,  that  his 
attorney,  Mr.  Hendrick  and  his  agent,  Mr.  DeGolia,  were  endeavoring 
to  sell  said  property,  and  had  a  sale  practically  consummated  at  the 
time  plaintiff  learned  defendants  had  sold  said  property  to  the  said  Byers. 

He  admits  that  he  stated  to  Mr.  Gleason  that  Mr.  Hendrick  and  Mr. 
DeGolia  assured  plaintiff  he  would  not  lose  anything  on  the  purchase, 
and  that  he  ought  to  make  some  money  on  it.  He  admits  that  he  stated 
he  would  not  live  on  the  farm  as  he  is  employed  as  a  laborer  in  a  fur- 
niture factory  in  Grand  Rapids;  that  he  is  a  single  man  well  along  in 
years,  and  that  a  large  part  of  the  savings  of  a  lifetime  have  been  invested 
in  said  premises.  He  denies  that  he  said  that  he  had  purchased  the 
place  against  his  better  judgment;  that  he  had  a  guarantee  from  anyone 
he  would  not  lose  anything  on  the  purchase.  He  denies  that  he  said  he 
had  no  use  for  said  farm,  but  admits  that  he  told  Mr.  Gleason  he  would 
like  to  get  his  money  out  of  it. 

4.  Answering  paragraph  four,  he  neither  admits  nor  denies  that  the 
notice,  Exhibit  A,  legally  terminated  his  contract,  as  there  is  no  Exhibit 
A  attached  to  said  cross-bill.  Plaintiff,  however,  denies  that  any  notice 
legally  terminated  his  contract,  and  denies  that  defendants  can  hold  pos- 
session of  said  property;  denies  that  they  had  a  right  to  sell,  buy  or 
deal  said  property  without  plaintiff's  consent,  and  for  further  answer  saya 
that  the  whole  transaction  is  a  wilful,  deliberate  fraud  upon  the  rights 
of  plaintiff,  is  unjust,  unequitable  and  is  but  an  attempt  to  legally  steal 
from  plaintiff  his  rights  in  said  property.  Further  answering,  plaintiff 
reiterates  that  he  made  a  legal  tender  of  the  interest  due  and  was  ready 
to  pay  any  taxes  due,  had  his  tender  been  accepted,  and  was  and  now  is 
ready  and  willing  to  pay  to  defendants,  or  any  of  them,  anything  he  owes, 
or  anything  the  court  may  find  plaintiff  owes  to  defendants. 

And  plaintiff  denies  that  defendants,  or  any  of  them,  are  entitled  to 

to  the  relief  prayed  for  in  their  cross-bill  of  complaint,  or  to  any  relief 

in  the  premises,  and  prays  that  the   same  may  be  dismissed  with  his 

costs. 

t  x.     n/r   t->     v  Jeremiah  C.  Hubbell, 

John  M.  Dunham,  ' 

Attorney  for  plaintiff, 

Business  Address: 


§185A]  FORFEITURE  WHEN   SUSTAINED  393 

(e)  The  Contract  Involved— (Exhibit  B). — This  contract,  made  the 
29th  day  of  June,  in  the  year  of  our  Lord  one  thousand  nine  hundred 
seventeen,  between  Louis  P.  Ohler  and  Agnes  A.  Ohler  (husband  and 
wife),  of  Jennison,  Ottawa  County,  Michigan,  parties  of  the  first  part, 
and  Andrew  D.  Boomsma  and  Lucy  Boomsma  (husband  and  wife),  of 
Holland,  Ottawa  County,  Michigan,  parties  of  the  second  part,  witnesseth 
as  follows: 

First.  The  said  parties  of  the  first  part,  in  consideration  of  the  sum 
of  money  hereinafter  mentioned  to  be  paid  to  them  by  the  said  parties 
of  the  second  part,  and  of  the  covenants  to  be  performed  by  the  said 
parties  of  the  second  part,  as  hereinafter  expressed,  hereby  agree  to 
sell  to  the  said  parties  of  the  second  part,  all  that  certain  piece  or  parcel 
of  land  situate  in  the  township  of  Wyoming,  County  of  Kent,  State  of 
Michigan,  known  and  described  as  follows: 

The  east  half  (J)  of  the  southwest  quarter  (J)  of  section  fifteen  (15) 
in  township  six  (6)  north,  range  twelve  (12)  west,  except  nine  and  one- 
half  (9J)  acres  in  width  from  the  west  side  thereof  and  except  parcel 
conveyed  in  deed  recorded  in  liber  399  of  deeds,  on  page  578,  with  the 
privileges  and  appurtenances  thereunto  belonging. 

Second.  The  said  parties  of  the  second  part,  in  consideration  of  the 
covenants  herein  contained  on  behalf  of  the  said  parties  of  the  first  part 
to  be  performed,  agree  to  purchase  of  the  said  parties  of  the  first 
part,  the  above  described  land  and  to  pay  for  the  same  to  the  said  parties 
of  the  first  part,  or  their  legal  representatives,  the  sum  of  six  thousand 
dollars,  lawful  money  of  the  United  States,  in  the  manner  following,  that 
is  to  say:  (on  the  margin  appeared,  "Three  thousand  dollars  by  trans- 
ferring a  house  and  several  lots  in  Holland  to  first  parties  by  second 
parties,  the  balance"),  one  hundred  dollars  or  more  each  year  on  August, 
commencing  August  1,  1919.  Interest  on  the  whole  amount  to  com- 
mence August,  1917.  First  parties  to  give  second  parties  a  warranty 
deed  of  above  premises  when  one  thousand  dollars  has  been  paid  on 
the  principal  and  take  mortgage  for  the  balance,  with  interest  at  the 
rate  of  six  per  cent,  per  annum,  payable  semi-annually,  on  the  whole  sum 
that  shall  from  time  to  time  remain  unpaid;  both  principal  and  interest 
to  be  paid  at  Jennison,  Michigan,  and  also,  that  they  will,  so  long  as 
any  part  of  the  principal  or  interest  of  the  said  consideration  money  re- 
mains unpaid,  well  and  faithfully,  in  due  season,  in  each  and  every  year, 
pay,  or  cause  to  be  paid,  all  taxes  and  assessments,  ordinary  and  extraor- 
dinary, that  may  for  any  purpose  whatever  be  levied  or  assessed  on 
said  premises,  or  on  this  contract,  or  the  interest  in  said  lands  created  or 
represented  by  this  contract,  and  that  they  will  not  commit  or  suffer  any 
other  person  to  commit,  any  waste  or  damage  to  the  said  lands  or  the 
appurtenance,  except  for  firewood  or  otherwise  for  their  own  use  or  while 
clearing  of  the  lauds  for  cultivation  in  the  ordinary  manner. 

Third.  The  said  parties  of  the  first  part  further  covenant  and  agree 
that  upon  the  faithful  performance,  by  the  said  parties  of  the  second  part. 
of  the  covenants  and  agreements  by  them   to  be   performed,  and   upon 


394  THE  LAW  OF  LAND  CONTRACTS  [§  185 A 

the  payment  of  the  several  sums  of  money  above  mentioned,  and  the 
interest  thereon  at  the  times  and  in  the  manner  and  at  the  place  above 
mentioned,  the  said  parties  of  the  first  part  will  well  and  faithfully  execute 
and  deliver  a  good  and  sufficient  deed  or  deeds  of,  and  thereby  convey 
to  the  said  parties  of  the  second  part,  their  heirs  and  assigns,  a  good 
and  unencumbered  title  in  fee  simple  to  the  above  described  premises 
with  their  appurtenances. 

Fourth.  It  is  mutually  covenanted  and  agreed,  by  and  between  the  par- 
ties hereto,  that  the  said  parties  of  the  second  part,  may  immediately 
enter  on  said  land,  and  remain  thereon  and  cultivate  the  same  as  long 
as  they  shall  fulfill  and  perform  all  the  agreements  hereinbefore  men- 
tioned on  their  part  to  be  fulfilled  and  performed,  but  if  they  shall  at 
any  time  hereafter,  violate  or  neglect  to  fulfill  any  of  said  agreements, 
they  shall  forfeit  all  right  or  claim  under  this  contract,  and  be  liable  to 
said  parties  of  the  first  part  for  damages,  and  shall  also  be  liable  to  be 
removed  from  said  land  in  the  same  manner  as  is  provided  by  law  for 
the  removal  of  a  tenant  that  holds  over  after  the  expiration  of  the  time 
specified  in  his  lease.  And  it  shall  be  lawful  for  the  said  parties  of  the 
first  part,  at  any  time  after  the  violation  or  non-fulfillment  of  any  of  the 
said  agreements  on  the  part  of  the  said  parties  of  the  second  part,  to 
sell  and  convey  the  said  land,  or  any  part  thereof,  to  any  other  person 
whomsoever;  and  the  said  parties  of  the  first  part  shall  not  be  liable 
in  any  way,  nor  to  any  person,  to  refund  any  part  of  the  money  which 
they  may  have  received  on  this  contract,  nor  for  any  damages  on  account 
of  such  sale.  And  it  is  hereby  expressly  understood  and  declared,  that 
time  is  and  shall  be  deemed  and  taken  as  of  the  very  essence  of  this 
contract,  and  that  unless  the  same  shall,  in  all  respects,  be  complied 
with  by  the  said  parties  of  the  second  part  at  the  respective  times,  and 
in  the  manner  above  limited  and  declared,  that  the  said  parties  of  the 
second  part  shall  lose  and  be  debarred  from  all  rights,  remedies  or 
actions,  either  in  law  or  equity,  upon  or  under  this  contract. 

Fifth.  This  contract  is  hereby  declared  to  be  binding  on  the  respec- 
tive representatives  of  the  parties  hereto. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 

Louis   T.   Ohler  (L.  S  ) 

Agnes   A.   Ohler,  (L.  S.) 

Andrew  D.  Boomsma,     (L.  S.) 
Lucy  D.  Boomsma.  (L.  S.) 

Signed,  sealed  and  delivered  in  presence  of 

(f)  Transfer  of  the  Contract  to  the  Plaintiff  Hubbell— (Exhibit  C).— 

Grand  Rapids,  Michigan,  Aug.  1,  1918. 

For  value  received,  to-wit,  in  the  transfer  of  lot  27  of  J.  Aldrich 
Smith's  subdivision  of  lots  39  to  58,  both  inclusive,  of  P.  Tregent's  sub- 
division of  lots  6,  7,  8,  9,  10,  11,  12  and  18  of  P.  Tregent's  subdivi- 
sion in  the  City  of  Grand  Rapids,  Kent  County,  Michigan,  according 
to   the   recorded   plat   thereof    (same   being   831   Arianna   street   in   said 


§  185A  |  FORFEITURE  WHEN   SUSTAINED  395 

city)  subject  to  a  mortgage  of  eight  hundred  ($800.00)  dollars  and 
accumulated  interest  from  February  7th  last,  together  with  the  sum  of 
two  hundred  twenty  ($220.00)  dollars,  for  the  purpose  of  paying  the 
interest  on  the  contract  hereinafter  mentioned  and  described  to  this 
date,  together  with  the  taxes  thereon  for  the  year  1917. 

I  do  hereby  sell,  assign,  transfer,  and  make  over  to  Jeremiah  C.  Hubbell 
all  my  right,  title,  and  interest  in  and  to  a  certain  land  contract  dated 
the  29th  day  of  June,  1917,  given  by  Louis  P.  Ohler  and  Agnes  A.  Ohler 
to  Andrew  D.  Boomsma  and  Lucy  Boomsma,  husband  and  wife,  and  the 
said  Lucy  Boomsma  having  departed  this  life  since  making  of  said 
contract.  Said  contract  conveying  that  certain  piece  or  parcel  of  land 
situate  in  the  township  of  Wyoming,  County  of  Kent  and  State  of 
Michigan,  known  and  described  as  follows,  to-wit: 

The  east  half  (J)  of  the  southwest  quarter  (J)  of  section  fifteen  (15)  in 
township  six  (6)  north,  range  twelve  (12)  west,  except  nine  and  one-half 
(9J)  acres  in  width  from  the  west  side  thereof,  and  except  a  parcel 
conveyed  in  deed  recorded  in  liber  399  of  deeds,  on  page  578.  Said 
party  to  have  immediate  possession  of  said  property  and  all  crops  grow- 
ing thereon,  and  after  the  payment  of  the  interest  and  taxes  as  above 
provided,  is  to  take  said  land  subject  to  the  three  thousand  dollars  to 
become  due  on  said  contract. 

In  witness  whereof  I  hereunto  set  my  hand  and  seal  the  day  and  year 
first  above  written. 

I  hereby  represent  that  I  am  single  at  this  time  and  am  the  entire 
owner  of  said  property,  subject  only  to  the  interest  of  the  grantors  in 
said  contract. 

Andrew  D.  Boomsma. 
Signed  in  presence  of: 
Hartley  E.  Hendrick, 
Wm.  E.  DeGolia. 

(g)  Notice  of  Forfeiture— (Exhibit  A).— Jeremiah  C.  Hubbell,  Esq.. 
Assignee  of  Andrew  D.  Boomsma  and  Lucy  Boomsma,  City. 

Dear  Sir:  Please  take  notice  that  default  has  been  made  in  the  terms 
and  conditions  of  a  land  contract  dated  June  29th,  1917,  given  by  Louis 
P.  Ohler  and  wife,  Agnes  A.  Ohler,  to  the  said  Boomsma  and  wife,  and 
that  you  have  violated  and  neglected  to  fulfill  the  agreements  therein 
contained  and  that  we  have  elected  to  declare  and  do  declare  the  said 
contract  forfeited  and  all  your  rights  and  claims  thereunder  at  an  end, 
and  you  are  hereby  notified  to  quit  and  surrender  up  the  said  premises 
to  us.  The  premises  referred  to  are  described  in  said  contract  as  "All 
that  certain  piece  or  parcel  of  land  situate  in  the  township  of  Wyoming, 
County  of  Kent,  State  of  Michigan,  known  and  described  as  follows: 

"The  east  half  (J)  of  the  southwest  quarter  (1)  of  section  fifteen  (15) 
in  township  six  (6)  north,  range  twelve  (12)  west,  except  nine  and  one- 


396  THE  LAW  0F  LAND  CONTRACTS         [§  185 A 

half  (9£)   acres  in  width  from  the  west  side  thereof  and  except  parcel 
conveyed  in  deed  recorded  in  liber  399  of  deeds,  on  page  578." 
Dated  April  12,  1919.  Yours,  etc., 

Louis  P.  Ohler,  and 
Agnes  A.  Ohler, 

Owners, 
By  Clark  H.  Gleason, 

Their  Agent  and  Attorney 

(h)  Decree. —  (Caption).  At  a  session  of  said  court  held  at  the  court 
house  in  the  City  of  Grand  Rapids,  in  said  county,  on  the  28th  day  of 
January,  A.  D.  1920. 

Present:    Hon.  JoHn  S.  McDonald,  circuit  judge. 

This  cause  came  on  to  be  heard  upon  the  bill  of  complaint  filed  therein, 
the  answer  and  cross-bill  of  defendants,  the  answer  of  said  plaintiffs 
to  said  cross-bill,  and  the  proofs  taken  in  open  court,  and  the  argu- 
ments of  counsel  for  the  respective  parties  from  which  the  following  facts 
satisfactorily  appear,  viz.: 

1.  Defendants  Louis  P.  Ohler  and  Agnes  A.  Ohler  were  the  owners 
in  fee  of  land  situate  in  the  township  of  Wyoming,  County  of  Kent,  State 
of  Michigan,  known  and  described  as  follows:  The  east  half  (I)  of  the 
southwest  quarter  (1)  of  section  fifteen  (15)  in  township  six  (6)  north, 
range  twelve  (12)  west,  except  nine  and  one-half  (9 J)  acres  in  width 
from  the  west  side  thereof  and  except  parcel  conveyed  in  deed  recorded 
in  liber  399  of  deeds,  on  page  578. 

2.  That  said  defendants  sold  the  said  land  on  land  contract  to  one 
Boomsma  and  wife,  June  29th,  1917,  taking  in  part  payment  therefor 
certain  encumbered  real  estate  and  leaving  a  balance  of  $3000.00  unpaid, 
the  first  payment  on  the  principal  being  $100.00,  due  Aug.  1,  1919,  and 
yearly  thereafter,  all  unpa»id  to  bear  interest  from  August  1,  1917,  payable 
semi-annually  at  six  per  cent.  That  by  said  contract  said  Boomsma 
and  wife  agreed  to  pay  all  taxes  on  the  lands  when  due;  that  they 
would  not  commit  or  suffer  any  other  person  to  commit  any  waste  or 
damage  to  said  land  while  the  purchase  price  was  unpaid,  and  that  if 
at  any  time  threeafter  they  should  violate  or  neglect  to  fulfill  any  of 
said  agreements,  they  should  forfeit  all  right  or  claim  under  the  con- 
tract and  be  liable  to  be  removed  from  the  said  land  in  the  same 
manner  as  is  provided  by  law  for  the  removal  of  a  tenant  that  holds 
over  after  expiration  of  the  time  specified  in  his  lease.  Said  contract 
also  provided  after  the  violation  of  any  of  said  agreements  on  the  part 
of  said  second  parties,  it  should  be  lawful  for  first  parties  to  sell  and 
convey  the  said  land  to  another  without  being  liable  in  any  way  for 
any  damages  on  account  of  said  sale,  and  it  was  expressly  understood  and 
declared  that  time  is  and  shall  be  deemed  and  taken  as  of  the  very 
essence  of  this  contract,  and  that  failure  to  comply  with  any  of  its 
conditions  in  time  and  manner  therein  provided  for  would  cause  second 
parties  to  lose  and  be  debarred  from  all  actions  at  law  or  in  equity  upon 
or  under  ihe  contract. 


§  185A]  FORFEITURE  WHEN  SUSTAINED  397 

3.  That  afterwards,  on  August  1,  1918,  said  Boomsma  sold  and  assigned 
said  contract  to  the  plaintiff  in  this  cause,  Jeremiah  C.  Hubbell.  Said 
Hubbell  bought  the  land  on  a  speculation  without  intending  to  occupy 
it  and  he  did  not  occupy  it,  and  the  house  and  barn  and  land  remained 
vacant. 

The  taxes  of  1918  amounting  to  $48.97,  said  Hubbell  at  no  time  paid, 
and  six  months'  interest  on  the  $3000.00  unpaid  on  the  contract  became 
due  February  1,  1919,  which  he  also  failed  to  pay.  He  also  suffered 
various  and  sundry  people  to  commit  waste  and  damage  to  said  lands 
and  the  appurtenances  particularly  the  house  and  barn. 

4.  Defendants  Ohler,  after  making  several  attempts  to  collect  of  plain- 
tiff the  interest  and  taxes  in  arrears  without  success,  placed  the  matter 
in  the  hands  of  their  attorney  who  demanded  the  interest  and  taxes 
of  both  plaintiff  and  his  attorney,  and,  failing  to  get  the  money,  on 
April  12,  1919,  they  caused  a  written  notice  to  be  served  on  plaintiff, 
forfeiting  the  contract,  and  declaring  all  plaintiff's  rights  thereunder  at 
an  end. 

5.  On  April  23,  1919,  defendants  Ohler,  sold  and  conveyed  said  land  to 
defendant  Byers,  for  a  valuable  consideration  in  good  faith,  and  defendant, 
Byers,  bought  the  same  in  good  faith,  and  at  once  took  possession  of  the 
land  and  has  since  lived  upon  it. 

It  thus  appearing  to  the  court  that  the  bill  of  complaint  filed  in  the 
cause  by  plaintiff  is  without  equity,  that  all  of  plaintiff's  rights  in  the 
land  described  in  said  bill  have  been  terminated,  and  the  contract  under 
which  he  held  forfeited  and  at  an  end,  and  that  said  contract  should 
be  cancelled  according  to  the  prayer  of  defendants'  cross-bill,  on  motion 
of  C.  H.  Gleason  and  A.  A.  Ellis,  attorneys  for  defendants,  it  is  ordered, 
adjudged  and  decreed,  and  this  court,  by  virtue  of  the  power  and 
authority  therein  vested,  doth  order,  adjudge  and  decree  as  follows,  viz.: 

1.  That  said  plaintiff  take  nothing  by  his  bill. 

2.  That  said  plaintiff  do  surrender  and  deliver  up  to  defendants,  Louis 
P.  Ohler  and  Agnes  A.  Ohler,  said  land  contract  to  be  cancelled,  and  that 
it  stand  cancelled  and  have  no  further  force  or  effect. 

3.  That  the  deed  of  said  land  made  by  defendant,  Ohler  and  wife  to 
defendant,  Byers,  stand  confirmed  as  valid  deed. 

4.  That  defendants  recover  of  plaintiff  the  costs  of  this  suit  to  be  taxed. 

John   S.   McDonald, 

Circuit  Judge. 
Examined,  countersigned  and  entered  by  me. 

Edward   L.  Wagner, 

Deputy   Clerk, 
(i)  Briefs  of  Counsel,  John  M.  Dunham,  for  Plaintiff. 

1.  Specific  Performance.  Specific  performance  of  a  land  contract  is 
like  the  specific  performance  of  any  other  kind  of  contract.  It  is  not 
granted  as  a  matter  of  right,  but  rests  in  the  sound  discretion  of  the 
court.    Tatten  v.  Bryant,  198  Mich.  523. 


398  THE  LAW  0F  LAND  CONTRACTS  [§  185 A 

It  has  therefore  been  held  that  each  case  must  rest  upon  its  own 
peculiar  facts,  so  that  the  court,  while  doing  justice  to  one,  will  work 
no  Injustice  to  others.  The  delay  of  many  years  in  bringing  such  action 
may  work  such  injustice  as  to  compel  a  refusal  of  this  remedy.  Cook 
v.  Stafford,  86  Mich.  163. 

2.  Time  is  the  essence  of  this  contract.  Morris  v.  Hoyt,  11  Mich.  9; 
Richmond  v.  Robinson,  12  Mich.  193. 

3.  That  the  vendor  cannot  stand  entirely  upon  the  provisions  of  his 
contract.  Bomier  v.  Caldwell,  8  Mich.  463;  Truesdail  v.  Ward,  24  Mich. 
117;  Kimball  v.  Goodburn,  32  Mich.  10. 

4.  The  failure  to  perform  within  the  time  fixed  will  not  necessarily 
forfeit  a  contract.  Relief  is  not  a  matter  of  right.  It  is  granted  only  if, 
under  all  circumstances  including  the  conduct  of  the  parties,  it  is  just 
and  reasonable.    Gram  v.  Wasey,  et  al.,  45  Mich.  223. 

The  delay  of  a  few  days  has  been  held  immaterial,  giving  the  plain- 
tiff a  clear  right  to  specific  performance.    Voltz  v.  Grummett,  49  Mich.  453. 

In  a  number  of  other  cases  the  court  has  granted  specific  perform- 
ance on  the  sole  condition  that  plaintiff  be  requried  to  pay  what  was 
due  with  compound  interest.     Richards  v.  White,  44  Mich.  622. 

The  plaintiff,  Hubbell,  tendered  interest  upon  interest  before  filing  this 
bill,  and  kept  his  tender  good  by  paying  same  to  the  clerk  of  the  Circuit 
Court. 

5.  Foreclosing  Contract.  Without  some  legal  procedure,  the  equitable 
rights  of  the  vendee  in  a  contract,  cannot  be  said  to  be  cut  off.  In 
Lambton  Loan  &  Investment  Company  v.  Adams,  132  Mich.  350,  it  is 
said  that  three  methods  are  open  to  the  vendor  when  the  vendee  fails 
to  make  his  contractual  payments:  (1)  a  suit  in  equity  to  foreclose 
the  vendor's  lien  or  cancel  the  contract;  (2)  the  legal  action  of  eject- 
ment; (3)  proceedings  under  the  statute  before  the  Circuit  Court 
Commissioner.    Ohler  did  none  of  these. 

In  Miner  v.  Dickey,  141  Mich.  518,  the  defendant  did  not  pay  the 
taxes  even  after  plaintiff  had  demanded  that  he  so  do.  No  further 
notice  nor  demand  of  any  kind  was  made  before  plaintiff  began  sum- 
mary proceedings.  On  appeal  to  the  Circuit  Court,  a  verdict  was  directed 
for  plaintiff  which  was  affirmed  by  this  court.  Welling  v.  Strickland, 
161  Mich.  235. 

The  vendor  in  a  contract  has  conveyed  the  equitable  title  to  his 
vendee.  He  has  a  lien  against  the  land  only  for  the  unpaid  purchase 
price.  In  Fitzhugh  v.  Maxwell,  34  Mich.  138,  it  is  held  that  a  court 
of  equity  has  no  jurisdiction  to  enforce  a  forfeiture.  The  English 
practice  required  a  sale  to  satisfy  his  lien,  on  the  theory  that  the  vendee's 
title,  either  legal  or  equitable  can  only  be  divested  by  a  sale.  See  also 
Kulling  v.  Kulling,  124  Mich.  56. 

6.  Notice  of  Forfeiture.  There  must  be  some  notice  of  forfeiture.  La 
France  v.  Griffin,  160  Mich.  236. 

This  notice  should  give  a  time  for  payment  or  redemption.  At  any 
rate,  the  vendee  must  offer  to  pay  within  a  reasonable  time.     Hogsett 


§  185A]  FORFEITURE  WHEN   SUSTAINED  399 

v.  Ellis,  17  Mich.  351;  Lavin  v.  Lynch,  203  Mich.  143;  Walker  v.  Casgrain, 
101  Mich.  604. 

Pomeroy's  Eq.  4th  Ed.  Sec.  816.  The  form  of  action  is  sustained  by 
many  authorities.  We  refer  to  the  recent  case  of  Schoenfeld  v.  Kemter, 
211  Mich.  464,  where  the  relief,  however,  was  not  granted.  In  Gregor  v. 
Olde,  209  Mich.  43,  Justice  Steere,  writing  the  opinion  of  the  court,  said: 

"That  equity  courts  have  jurisdiction  to  relieve  from  forfeitures,  direct 
accounts,  and  grant  specific  performance  where  equitable  grounds  to 
those  ends  are  properly  charged  and  satisfactorily  proven,  is  textbook 
law  and  not  open  to  question." 

And  we  refer  especially  to  the  case  of  Lozon  v.  McKay,  203  Mich. 
364,  where  a  bill  drawn  in  substantially  the  same  manner  as  the  one 
In  this  case,  was  upheld,  and  the  plaintiff  relieved  from  forfeiture. 

It  follows,  therefore,  from  the  equities  of  this  case,  the  diligence 
and  the  good  faith  of  plaintiff,  the  undue  haste  of  the  defendants,  their 
conduct  and  actions,  their  motives,  the  profit  Ohler  made  from  the 
resale,  the  small  equity  he  had  in  the  farm,  the  large  equity  of  plain- 
tiff, together  with  all  other  circumstances,  that  plaintiff  is  entitled  to 
relief.  If  the  sale  to  Byers  was  made  in  good  faith,  then  he  is  entitled 
to  an  accounting  which,  in  our  judgment,  should  give  him  the  value 
of  his  equity,  less  the  taxes  paid  by  Ohler  the  summer  following  the 
sale  to  Byers,  which  would  be  $3,200  less  $52.89  (84). 

In  Hawley  v.  Sheldon,  et  al.,  Harrington's  Chancery,  page  420,  spe- 
cific performance  was  refused  but  such  an  accounting  was  directed. 

7.  Waste.  We  believe  there  is  no  merit  to  defendant's  claim  of  waste. 
This  consisted  of  allowing  the  roof  to  get  out  of  repair  and  water  to 
leak  down.  Damage  of  this  kind,  due  to  the  elements  or  to  natural 
wear  and  tear,  is  never  treated  by  the  law  as  waste.  They  claim  that 
some  doors  had  been  taken  out  of  the  house  and  some  stanchions  out 
of  the  barn,  and  that  these  things  happened  because  Hubbell  was  not 
living  on  the  place  to  watch  it.  Ohler  did  not  know  of  these  things, 
however,  until  after  he  had  declared  a  forfeiture.  This  element  is 
injected  into  the  case  simply  as  an  alibi.  He  also  claims  that  waste 
was  committed  because  the  fences  were  not  kept  in  proper  condition, 
but  Boomsma,  the  former  owner,  testified:  "The  fences  around  the 
barn  were  awful  bad." 

It  is  said  in  Pomeroy's  Equity,  Fourth  Edition,  Section  857: 
"The  vendor's  only  interest  in  the  use  of  the  land  he  has  contracted 
to  sell  is  to  have  his  security  unimpaired  so  that  it  may  satisfy  the 
unpaid  purchase  price.  The  vendee  in  possession  is  entitled  to  make 
any  use  of  the  property  so  long  as  he  does  not  materially  affect  its 
value  as  security  for  the  purchase  money.  In  order  that  the  vendor 
may  have  an  injunction  to  prevent  waste,  he  must  show  that  the  vendee 
is  lessening  the  value  of  the  land  so  as  to  impair  his  security,  and 
thus  to  injure  his  property — the  security.  The  analogy  to  the  mort- 
gage is  close.  Mortgagee  cannot  maintain  an  action  to  restrain  waste 
without  showing  that  his  security  will  be  impaired." 


400  THB  LAW  OF  LAND  CONTRACTS  [§  185A 

No  such  showing  was  made  in  this  case.  Ohler  had  ample  security. 
His  equity  was  then  not  over  $800.00  and  he  himself  testified  that  the 
thing  he  complained  of  was  the  nonpayment  of  interest  and  taxes,  and 
that  he  tried  to  forfeit  the  contract  because  of  those.  He  had  not  been 
on  the  place  at  that  time  .  This  case  is  wholly  unlike  Welling  v.  Strick- 
land, supra,  and  proposition,  therefore,  has  no  merit  and  needs  no 
further  discussion. 

8.  Defendant  Byers  was  not  a  bona  fide  purchaser  of  this  property,  in 
good  faith. 

Pomeroy's  Eq.  745,  definition  there  set  out. 


Authorities  Cited  by  Defendant 

(j)  Brief  for  Defendant. — 1.  Specific  performance  is  not  a  matter  of 
right.  It  should  only  be  granted  when  justice  demands  it.  Ruse  v. 
Conrad,  47  Mich.  449;  Cox  v.  Raider,  138  Mich.  249;  Solomon  v.  Shewitz, 
185  Mich.  620. 

Defendant  Ohler  in  forfeiting  the  contract  and  taking  possession  and 
selling  the  land  was  strictly  within  the  contract  and  his  legal  rights. 
Mr.  Ohler  had  a  right  to  at  once,  after  giving  notice  to  Hubbell  that  he 
declared  the  contract  forfeited,  to  take  peaceable  possession  of  the 
premises.    Murphy  v.  Mclntyre,  152  Mich.  591,  and  many  cases  cited. 

It  was  not  necessary  for  defendant  Ohler  to  bring  suit  after  Hubbell 
had  forfeited  the  contract  and  the  contract  was  declared  forfeited  and 
notice  given  to  get  possession.  He  got  possession  peaceably  and  had  the 
right  to  take  it.     Donnelly  v.  Lyons,  173  Mich.  520. 

In  this  case  the  placing  of  one  sign  only  was  not  sufficient. 

Where  the  premises  are  vacant  and  no  personal  occupancy,  there 
could  be  no  necessity  for  bringing  a  possessory  action. 

As  to  when  equity  will  relieve  from  forfeiture,  Lozon  v.  McKay,  203 
Mich.  366. 

As  to  when  a  contract  will  be  enforced,  Lake  Erie  Land  Co.  v.  Chilinski. 
197  Mich.  215. 

Defendant  might  have  taken  possession  immediately  after  declaring 
contract  forfeited.    Patterson  v.  Hogstein,  183  Mich.  470. 

That  time  may  be  essential  where  the  parties  so  stipulate,  Pomeroy's 
Eq.  Jur.  Sec.  816;  Heckard  v.  Sayre,  34  111.  142,  holding  that  neither  a 
court  of  law  nor  equity  can  set  aside  a  stipulation  that  time  is  the 
essence  of  a  contract  unless  there  is  fraud  or  deceit  of  some  kind. 

In  Nelson  v.  Smith,  161  Mich.  363,  delays  and  favors  by  grantor  greater 
than  in  the  case  at  bar,  were  held  not  to  be  fatal  to  relying  upon 
time  as  of  the  essence  of  the  contract,  and  enforcing  the  forfeiture.  The 
head  note  reads  as  follows: 

"Evidence  that  the  vendor  in  a  contract  for  the  sale  of  land  attempted  to 
assist  the  purchaser,  whose  payments  were  overdue,  in  finding  a  loan,  and 
that  the  purchaser,  after  being  in  default  three  months,  wrote  letters  ad- 
vising the  vendor  that  he  had  found  a  person  who  would  loan  him  suffi- 
cient money  to  pay  the  amount  due,  and  that  the  vendor  had  said  he  could 


§  185A]  FORFEITURE  WHEN   SUSTAINED  401 

fix   matters   up   so  neither  party  would   lose   much,   is   not   sufficient  to 
establish  a  waiver  or  estoppel  to  enforce  a  forfeiture  for  the  default." 

In  the  above  case,  the  purchaser  had  made  improvements;  in  this  case, 
the  purchaser  had  allowed  waste  and  failed  to  pay  the  taxes. 

In  Jones  v.  Berkey,  181  Mich.  473,  the  contract  was  like  the  one  at 
bar  as  to  time.  The  case  was  from  Kent  Circuit,  tried  by  Judge  Brown. 
The  head  note  covers  the  holding: 

"While,  as  a  general  rule,  time  is  not  of  the  essence  of  a  contract 
to  pay  money,  though  the  time  for  payment  be  fixed,  and  a  declaration 
of  such  intention  is  not  conclusive,  yet,  where  the  requirement  is  rea- 
sonable, and  the  circumstances  give  occasion  for  it,  the  parties  may 
properly  stipulate  that  the  provision  relative  to  the  time  of  installments 
to  be  paid  upon  a  land  contract  shall  be  of  the  essence." 
and  cited  Richmond  v.  Robinson,  12  Mich.  193.     It  then  quotes: 

"If  time  is  of  the  essence,  a  performance  after  the  time  fixed  does  not 
bind  the  other  party  unless  he  waives  the  breach,  and  thereby,  in  effect, 
makes  a  new  contract  taking  the  place  of  the  old  one."  Clark  on  Contracts 
(2nd  Ed.)  Sec.  233. 

The  opinion  further  quotes  and  says: 

"Nothing  short  of  an  offer  of  everything  that  the  creditor  is  entitled 
to  receive  is  sufficient,  and  a  debtor  must  at  his  peril  tender  the  entire 
sum  due,  including  all  necessary  expenses  incurred,  or  damages  suffered 
by  the  creditor  by  reason  of  the  default  of  the  debtor."  Citing  38  Cyc. 
p.  137. 

A  party  seeking  relief  against  a  forfeiture  should  tender  sufficient 
to  make  the  other  party  whole.    Stickney  v.  Parmenter,  35  Mich.  237 

The  general  rule  is  well  stated  by  Judge  Sanborn  in  National  Surety 
Co.  v.  Long,  125  Fed.  887,  60  C.  C.  A.  623,  citing  many  authorities: 

"He  who  commits  the  first  substantial  breach  of  a  contract  cannot 
maintain  an  action  against  the  other  contracting  party  for  a  subsequent 
failure  on  his  part  to  perform." 

And  the  case  holds:  "After  default  and  resale  to  a  third  person,  the 
defendant  was  entitled  to  have  a  sufficient  sum  tendered  to  include 
necessary  costs  and  expenses  arising  from  the  undisputed  default;  to 
offer  merely  the  payment  provided  for  by  the  terms  of  the  agreement 
was  insufficient  as  a  foundation  for  an  action  for  damages. 

The  difference  is  pointed  out  in  Miller  v.  Havens,  51  Mich.  482.  The 
head  note  is  as  follows: 

"Forfeiture  clauses  in  a  lease  are  not  favored  by  the  courts,  and  their 
effect  will  be  restricted  as  far  as  possible;  when  the  lease  explicitly 
provides  that  the  landlord  may  treat  it  as  void  upon  breach  of  condition 
by  the  tenant,  his  election  to  do  so  dissolves  the  relation  between  him 
and  his  tenant." 

The  doctrine  there  announced  is  firmly  established  in  a  case  where 
the  Supreme  Court  adopts  the  opinion  of  the  lower  court,  which  is  very 
exhaustive   and   cites   the   authorities   of  many   states,   all    to   the   same 


402  THE  LAW  OF  LAND  CONTRACTS  [§  185A 

effect.    That  case  is  DeGrasse  v.  Verona  Mining  Company,  185  Mich.  514. 
We  quote  from  page  537: 

"Assuming  that  a  covenant  to  operate  the  property  may  be  implied, 
and  that  the  Verona  Company  failed  to  perform  such  implied  covenant, 
yet  the  right  to  forfeit  the  lease  would  not  follow.  The  right  of  for- 
feiture is  confined  to  the  failure  of  the  lessee  respecting  the  covenants 
and  conditions  which  are  expressed  in  the  lease  and  does  not  arise  upon 
the  non-observance  of  an  implied  covenant  or  condition." 

2.  Fraud  is  not  to  be  presumed,  but  must  be  proved.  (1873)  Robert 
v.  Morrin's  Estate,  27  Mich.  306;  (1877)  Cranson  v.  Smith,  37  Mich.  309, 
26  Am.  Rep.  514;  (1883)  Brown  v.  Dean,  52  Mich.  267,  17  N.  W.  837: 
(1884)  Edwards  v.  Edwards,  54  Mich.  347,  19  N.  W.  164;  (1907)  Raymond 
v.  McKenna,  147  Mich.  35,  110  N.  W.  121,  13  Detroit  Leg.  N.  935. 

Fraud  is  not  presumed,  and  it  is  not  ordinarily  necessary  to  negative 
it  until  some  proof  is  offered  tending  to  show  it.  Attorney  General  v. 
Ruggles,  59  Mich.  123,  26  N.  W.  419. 

3.  "Waste  is  whatever  tends  to  the  destruction  of  the  inheritance  or 
to  its  depreciation  in  value,  and  may  be  committed,  of  land  as  well 
as  in  houses  and  timber."    Wilds  v.  Layton  (1  Delaware  Ch.  226). 

"The  impoverishment  of  fields,  by  constant  tillage  from  year  to  year 
is  waste."    Sarles  v.  Sarles,  et  al.,  Vol.  3  Sanford's  Chancery  Reports,  601 


CHAPTER  XI 

FORECLOSURE  OF  VENDOR'S  LIEN 
PLEADING   AND   PRACTICE 

§  186.  Foreclosure  by  Vendor,  Nature  of  Action. 

§  187.  What  Actions  are  Waived  by  Pursuing  Remedy  of  Foreclosure. 

§  188.  Pursuing  Foreclosure  and  Action  at  Law  for  Purchase  Price  Con 
currently. 

5  189.  Foreclosure  of  Land  Contract— Bill  of  Complaint  Form. 

§  190.  Decree  of  Foreclosure — Form. 

§  191.  Commissioner's  Deed  on  Foreclosure  Sale. 

§  192.  Notice  of  Sale  by  Circuit  Court  Commissioner — Form. 

§  193.  Affidavit  of  Posting  Notices  of  Sale— Form. 

§  194.  Circuit  Court  Commissioner's  Report  of  Sale — Form. 

§  195.  Exhibit  C — Statement  of  Fees  and  Disbursements  by  Circuit  Court 
Commissioner  on  Sale. 

§  196.  Forms  of  Receipts  From  Circuit  Court  Commissioner. 

5  196A.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases  in  the  Fore- 
closure of  Vendor's  Liens. 

§186.  Foreclosure  by  Vendor,  Nature  of  Action. — Strictly 
speaking  the  vendor's  interest  in  the  property  sold  under  a 
land  contract  under  which  possession  has  been  given  to  the 
vendee  is  not  a  legal  estate  nor  has  the  vendor  a  lien  on  the 
property  as  security  for  the  purchase  price.  His  interest  is 
a  mere  equitable  charge  on  the  land  which  can  be  established 
as  a  lien  by  judicial  decree  and  is  foreclosed  in  proceedings 
which  are  in  many  respects  analogous  to  the  foreclosure  of 
mortgages.1 

Said  the  Michigan  Supreme  Court  in  one  case  with  reference 
to  the  nature  of  the  vendor's  interest,  "while  at  law  the  title 
remains  in  the  vendor,  yet  in  equity  the  contract  conveys  it 
to  the  vendee  and  the  only  principle  which  allows  the  vendor 
to  sue  for  his  money  and  at  the  same  time  seek  security 
against  the  land,  is  the  one  which  recognizes  the  analogy 
to  the  vendor's  lien,"  in  cases  where  the  legal  title  has  been 
conveyed.  The  title  of  the  vendee  whether  legal  or  equitable 
can  only  be  divested  by  sale.2 

1.  Pomeroy  Equity  Jurisprudence,  2.  Fitzhugh  v.  Maxwell,  31  Mich. 

Vol.  3,  Sec.  1260.  178. 


404 


THE  LAW  OF  LAND  CONTRACTS 


[§186 


In  another  case  the  court  said  the  claim  of  the  vendor  is  but 
an  ordinary  money  debt,  secured  by  the  contract.8 

In  equity,  the  action  to  enforce  the  so-called  lien  is  an  action 
to  compel  the  vendee  to  make  a  payment  of  the  purchase  price 
within  a  specified  time  or  else  be  barred  of  all  rights  under  the 
contract.  It  is  common  to  speak  of  the  interest  of  a  vendor 
and  vendee  under  a  land  contract  as  being  analogous  to  the 
interest  held  by  mortgagee  under  a  mortgage,  but  this  is  not 
an  accurate  use  of  the  terms,  as  the  vendor  has  the  complete 
legal  title  and  the  vendee  cannot  defeat  such  title  by  any  act 
or  transfer  even  to  or  with  a  bona  fide  purchaser.4 

Foreclosure  proceedings  in  relation  to  land  contracts  are 
not  governed  by  the  statutory  provisions  relating  to  the  fore- 
closure of  mortgages.6 

The  time  given  for  the  vendee  to  redeem  by  paying  up  all 
arrearages  on  the  contract  is  usually  short,  thirty  to  sixty 
days  from  the  date  of  the  decree,  failing  in  which  the  decree 
provides  for  a  sale  of  the  premises,  and  immediate  possession 
by  the  purchaser.6 

The  decree  usually  provides  that  the  defendant  who  was 
the  original  vendee  on  the  contract  shall  pay  any  deficiency 
between  the  selling  price  of  the  premises  and  the  contract 
price.7 

The  property  should  be  advertised  by  the  commissioner  for 
the  same  length  of  time  and  in  the  manner  provided  for  the 
sales  of  property  under  mortgage  foreclosure.8 


3.  Walker  v.  Casgrain,  101  Mich. 
608. 

v.    Bowling,    117    Mich. 
Bowen  v.  Lansing,  129 


4.  Jones 
288  (292); 
Mich.  117. 

5.  Jones 


v.  Bowling,  Supra. 

6.  Jones  v.  Bowling,  Supra.  Hold- 
ing that  foreclosure  proceedings  in 
relation  to  land  contracts  are  not 
governed  by  the  limitation  imposed 
by  statute  in  relation  to  proceeding 
in  the  foreclosure  of  mortgages. 

7.  Schmide  v.  Gaukler,  156  Mich. 
243. 

8.  Jones  v.   Bowling,   Supra.     As 


to  the  sale  of  mortgage  premises 
Compiled  Laws,  Sec.  12683,  pro- 
vides that  such  sale  shall  be  at 
public  vendue  between  the  hours 
of  nine  o'clock  in  the  morning  and 
the  setting  of  the  sun,  at  the  court 
house  or  place  of  holding  the  Cir- 
Court  in  the  county  in  which  the 
real  estate  or  some  part  thereof 
is  situated,  or  at  such  other  place 
as  the  court  shall  direct.  Circuit 
Court  Rule  58,  Sec.  5,  provides  that 
sales  under  decrees  of  foreclosure 
shall  not  be  ordered  on  less  than 
six  full  weeks,  or  forty-two  days' 


§186] 


FORECLOSURE  OF   VENDOR'S   LIEN 


405 


Where  the  vendor  effects  a  sale  of  the  premises  upon  which 
a  land  contract  is  outstanding,  it  is  a  general  rule  that  the 
party  to  whom  such  vendor  sells  will  be  subrogated  to  all  the 
rights  of  the  vendor  with  respect  to  the  land  in  question. 
While  he  succeeds  to  all  the  rights  of  the  vendor  in  the  prop- 
erty thus  conveyed,  either  as  to  foreclosure  of  the  vendor's 
lien  or  other  remedies,  he  also  takes  it  subject  to  all  the  equita- 
ble rights  of  the  original  vendee  and  usually  equity  will  com- 
pel him  to  specifically  perform  the  contract  in  the  same  man- 
ner as  the  original  vendor.9 

Before  the  vendor  can  maintain  any  action  against  the 
vendee  in  foreclosing  the  contract  it  is  necessary  that  the 
vendor  himself  must  not  have  been  guilty  of  any  substantial 
breach  of  such  contract,  as  it  is  a  well  settled  principle  of  law 
that  he  who  commits  the  first  substantial  breach  of  a  con- 
tract cannot  maintain  an  action  against  the  other  contracting 
party  for  a  subsequent  failure  on  his  part  to  perform.10 

Where  the  vendee  has  conveyed  his  interest  in  the  property 
or  has  leased  the  same,  all  such  parties  in  interest  should  be 
made  parties  defendant  in  the  action  of  foreclosure.11 

It  may  farther  be  noted  in  this  connection  that  the  vendee 
has  an  equitable  charge  on  the  real  estate  covered  by 
the  contract  of  purchase,  which  is  a  counterpart  of  the  vendor's 
so-called  lien  as  security  for  the  purchase  money  the  vendee 
has  paid  and  for  the  performance  of  the  vendee's  obligation 
to  convey,  which  can  be  enforced  in  exactly  the  same  manner 
by  foreclosure  as  the  vendor's  so-called  lien.12 


notice,  and  publication  shall  not 
commence  until  the  time  fixed  by 
decree  for  payment  has  expired, 
nor  within  six  months  after  com- 
mencement of  suit. 

9.  Gates  on  Real  Property,  Sec. 
615-B.  26  Am.  &  Eng.  Encyc.  of  Law 
26;  see  also  11  Warvelle  on  Ven- 
dors, Sec.  735;  Jackson  v.  Groat 
(N.  Y.  1847),  7  Cow.  285;  Haugh- 
wont  v.  Murphy,  22  N.  J.  Eq.  531; 
Ohio  River  Junction  R.  Co.  v.  Pa. 
Co.,  222  Pa.  573,  72  Atl.  271;  Farady 
Coke    Etc.    Co.    v.    Ownes,    26    Ky. 


Law  Rep.  243,  80  S.  W.  771;  Muel- 
ler v.  Nortman,  116  111.  468,  96  Am. 
St.  Rep.  997,  93  N.  W.  539. 

10.  Jones  v.  Berkey,  181  Mich. 
472;  Boone  v.  Perrigo,  217  Mich.  47. 

11.  Schmidt  v.  Gaukler,  156  Mich. 
243. 

12.  Pomeroy's  Equity  Juris.  Sec. 
1263;  Felkner  v.  Tighe,  39  Ark.  357; 
Stults  v.  Brown,  112  Ind.  370,  2 
Am.  St.  Rep.  190,  14  N.  E.  230; 
Coleman  v.  Floyd,  131  Ind.  330, 
31  N.  E.  75;  Ellison  v.  Branstrattor, 
45  Ind.  App.  307,  88  N.  E.  963,   89 


406  THE  LAW  0F  LAND  CONTRACTS  [§  187 

§  187.  What  Actions  are  Waived  by  Pursuing  Remedy  of 
Foreclosure. — Since  the  remedy  by  foreclosure  of  the  vendor's 
lien,  so-called,  affirms  the  existence  of  the  contract  and  seeks 
to  collect  the  purchase  price  by  a  sale  of  the  vendee's  interest 
in  the  premises,  an  action  in  foreclosure  will  waive  the  benefit 
of  the  vendor's  prior  notice  of  forfeiture  by  default  in  the 
payment  and  thereafter  the  vendor  cannot  pursue  any  action 
which  is  predicated  upon  the  assumption  that  the  contract 
has  been  terminated.13 

§  188.  Pursuing  Foreclosure  and  Action  at  Law  for  Purchase 
Price  Concurrently. — It  appears  to  be  the  well  established 
rule  that  the  vendor  may  sue  in  equity  to  enforce  the  contract 
and  also  at  law  to  recover  the  debt  which  the  vendee  has 
contracted  to  pay  by  the  contract  or  both  remedies  may  be 
pursued  concurrently  so  long  as  the  vendor  retains  the  title 
and  clearly  manifests  his  intention  to  rely  upon  it  as  security 
for  his  debt,  equity  will  not  compel  him  to  part  with  such 
title  until  his  debt  for  the  purchase  price  has  been  paid  and 
where  he  institutes  proceedings  at  law  for  the  recovery  of  the 
purchase  price  he  must  offer  to  convey  a  marketable  title  to 
the  land  and  be  in  a  position  to  perform  the  contract  on  his 
part  and  offer  so  to  do  before  he  can  compel  the  vendee  to 
pay  the  purchase  price.14 

§189.  Foreclosure  of  Land  Contract  —  Bill  of  Complaint 
Form. 

(Title  and  Introduction.) 

1.  That  on  or  about  the day  of 

N.  E.  513;  Delano  v.  Saylor  (Ky.),  258;  Everett  v.  Mansfield,  148  Fed. 
113  S.  W.  888;  Lowe  v.  Maynard  374,  8  Ann.  Cas.  956,  78  C.  C.  A. 
(Ky.)  115  S.  W.  214;  Wright  v.  igg,  137  Fed.  190;  Gerstell  v.  Shirk, 
Yates,  140  Ky.  283,  130  S.  W.  1111;  210  Fed.  223,  127  C.  C.  A.  41;  How- 
Elliott  v.  Walker,  145  Ky.  71,  140  ard  y  Linnhaven  Orchard  Co.,  228 
S.  W.  51;  Groves  v.  Stouder  (Okla.)  Fed  523;  Williams  v.  shuman,  141 
161  Pac.  239;  Cleveland  v.  Bergen  Q&  m  gQ  g  fi  625;  Young  v 
Bldg.  &  Imp.  Co.  (N.  J.  Eq.),  55  Walk  224  Mags  491  113  N.  E. 
Atl.  117;  Elterman  v.  Hyman,  192 
N.  Y.  113,  127  Am.  St.  Rep.  862, 
15  Ann.  Cas.  819,  and  note,  84  N. 
E.  739;  Ihrke  v.  Continental  Life  Savings  Bank,  115  Mich  548  See 
Ins.  &  Investment  Co.,  91  Wash.  342  Sec.  155  ante  for  full  collection  of 
L.  R.  A.  1916  F.  430,  157  Pac.  866;  authorities  on  this  subject. 
Townsend  v.  Vanderwerker,  160  U.  14.  Gates  on  Real  Property,  Sec. 
S.   171,  40  L.  Ed.  383,  16   Sup.   Ct.  617. 


363. 
13.  Old  Second  National  Bank  v. 


§189 1  FORECLOSURE   OF   VENDOR'S   LIEN  407 

(here  insert  date  contract  was  entered  into),  and  at  this  date 
plaintiff  was  and  is  the  owner  of  that  certain  parcel  or  tract  of 

land  lying  and  being  situate  in  the  county  of and 

state  of ,  known  and  described  as  (here  insert  com- 
plete legal  description  of  real  estate). 

2.  That  on  the  day  and  date  aforesaid,  plaintiff  entered  into 

a  written  contract  with  the  said (here  insert  the 

name  of  defendant  or  defendants),  for  the  sale  and  transfer 

of  said  described  and  to  the  said (here  insert  the 

name  of  defendant),  which  said  agreement  provided  (here  in- 
sert brief  description  of  the  terms  of  the  agreement  and  es- 
pecially the  provisions  which  the  defendant  has  violated),  a 
true  copy  of  such  agreement  being  hereto  attached  and  marked 
"Exhibit  A"  and  made  a  part  hereof. 

3.  That  simultaneous  with  the  execution  of  said  contract 
the  same  was  duly  delivered  to  the  parties  thereto  and  said 
defendant  thereupon  paid  to  this  plaintiff  thereunder,  as  pro- 
vided therein,  the  sum  of dollars  and  possession  of 

said  premises  was  thereupon  surrendered  to  the  said  defendant. 

4.  That  in  and  by  the  terms  of  said  contract  there  became 
due  on  the day  of the  sum  of 

dollars,  as  one  of  the  installments  of  the  principal  of  said  con- 
tract, together  with  interest  thereon  from  the day  of 

(here  describe  fully  the  payments  which  became 

due  under  the  terms  of  the  contract  and  upon  which  the  vendee 
became  in  default,  including  taxes  or  any  other  arrearages 
under  the  contract) ,  and  that  there  is  now  due  and  wholly  un- 
paid under  and  by  viitue  of  the  terms  of  said  contract,  the 
sum  of dollars. 

5.  That  it  is  provided  by  the  terms  of  said  contract  that  if 
the  defendant  made  default  in  any  of  the  payments  which 
became  due  thereunder,  all  his  rights  under  said  contract  would 
thereby  cease  and  determine  and  be  forfeited.  That  said  de- 
fendant has  defaulted  in  making  the  payments  and  in  perform- 
ing the  conditions  of  said  contract  as  hereinbefore  set  forth 
and  that  all  his  rights  under  said  contract  have  ceased  and 
determined. 


408  THE  LAW  0F  LAND  CONTRACTS  [§  189 

6.  That  this  plaintiff  is  ready  and  willing  to  carry  out  his 
part  of  said  contract,  but  the  defendant  has  failed,  neglected 
and  refused  to  pay  the  amount  due  thereon  and  has  made 
default  therein  and  that  there  is  due,  owing  and  payable  to  this 

plaintiff  upon  and  by  virtue  of  said  contract,  the  sum  of 

dollars  with  interest  from  the day  of 


7.  That  no  proceedings  at  law  have  been  had  for  the  recovery 
of  the  debt  secured  by  said  contract  or  any  part  thereof  and 
that  said  debt  has  never  been  collected  or  paid. 

WHEREFORE,  Plaintiff  prays,  as  follows: 

(a)  That  an  account  may  be  taken  under  the  direction  of  the 
Court  of  the  amount  due  this  plaintiff  upon  said  contract  for 
principal  or  interest  or  both,  or  for  any  taxes  so  secured  by 
said  contract  and  that  the  defendant  may  be  decreed  to  pay 
to  this  plaintiff  the  amount  due  and  payable  to  him,  on  taking 
such  account  together  with  the  costs  of  this  suit  at  a  day  to 
be  appointed  by  this  Court  for  that  purpose  and  that  in  default 
of  such  payment,  the  defendants  herein  and  all  persons  claim- 
ing under  or  through  them  or  any  of  them  may  be  forever 
barred  or  foreclosed  of  and  from  all  right  and  equity  of  re- 
demption and  all  claim  and  interest  of,  in  and  to  the  lands  and 
tenements  described  in  said  contract. 

(b)  That  in  default  of  said  payment  that  the  said  land  and 
tenements  may  be  sold  under  the  direction  of  this  Court  and 
the  money  arising  from  such  sale  or  so  much  thereof  as  may 
be  necessary,  be  applied  to  satisfy  and  pay  the  charges  of 
such  sale  and  the  amount  so  found  due  and  payable  to  this 
plaintiff,  with  the  said  costs,  and  that  the  defendants  herein 
and  all  persons  claiming  or  to  claim  under  them  or  any  of  them 
who  may  come  into  the  possession  of  said  lands  or  tenements 
or  any  of  them  since  the  filing  of  the  notice  of  the  pendency  of 
this  suit  as  provided  by  law,  or  after  having  received  actual 
notice  of  such  pendancy,  be  decreed  to  deliver  and  yield  posses- 
sion thereof  to  the  purchaser  or  purchasers  at  said  sale,  upon 
his  or  their  producing  the  deed  or  deeds  therefore  executed  by 
the  officer  or  person  appointed  by  the  Court  to  conduct  such 
sale,  together  with  a  certified  copy  of  the  order  of  the  Court 
confirming  such  sale,  after  the  order  has  become  absolute. 


§  190]  FORECLOSURE   OF   VENDOR'S    LIEN  409 

(c)   That  the  said  defendant may  be  decreed  to 

pay  to  this  plaintiff  the  balance  of  the  debt  due  and  payable  to 
him  remaining  unsatisfied  after  such  sale  of  said  contract 
premises  and  that  the  plaintiff  may  have  execution  therefor 
and  for  his  costs  according  to  the  rules  and  practices  of  this 
Court. 

8.  That  plaintiff  may  have  such  other  further  and  different 
relief  as  shall  seem  to  the  Court  just  and  equitable  in  the 
premises. 

§  190.  Decree  of  Foreclosure — Form. 

(Here  insert  caption.) 

At  a  session  of  the  Circuit  Court  for  the  County  of , 

in  Chancery,  held  at  the  Court  room  in  the  City  of 

on  the day  of ,  present  the  Honorable 

Circuit  Judge. 

This  cause  having  come  on  to  be  heard  upon  the  pleadings 
and  proofs  taken  therein  in  open  court,  and  having  been  argued 
by  counsel  for  the  respective  parties  and  the  Court  having  duly 
considered  the  same  and  being  duly  advised  in  the  premises 
does  find  that  the  allegations  contained  in  the  bill  of  complaint 
are  true  and  the  plaintiff  is  entitled  to  the  relief  prayed  for 
in  his  bill  of  complaint  and  that  the  defendant  is  not  entitled 
to  the  relief  prayed  for  in  his  answer. 

IT  IS  THEREFORE,  ORDERED,  ADJUDGED  AND  DE- 
CREED as  follows : 

That  the  defendant  pay  to  the  plaintiff  on  or  before  thirty 

days  from  this  date,  the  sum  of dollars  (here  insert 

the  aggregate  amount  due  under  the  contract  including  princi- 
pal and  interest),  together  with  interest  on  such  sum  at  the 

rate  of  six  per  cent  (6%)  per  annum  from  the day 

of ,  the  date  of  this  decree,  which  said  sum,  as 

aforesaid,  includes  the  various  amounts  of  principal,  interest 
and  taxes  due  on  said  contract  at  the  date  of  this  decree. 

2.  That  upon  the  payment  to  the  plaintiff,  of  said  sum  of 
dollars,  together  with  interest  thereon,  as  herein- 
before provided,  on  or  before  the day  of 

shall  constitute  a  satisfaction  of  this  decree  and  that  upon  the 
payment  to  plaintiff  of  said  sum,  as  aforesaid,  the  plaintiff  shall 


410  THE  LAW  OF  LAND  CONTRACTS  [§  190 

file  in  this  cause,  a  satisfaction  of  this  decree  and  a  discon- 
tinuance of  this  suit. 

3.  It  is  further  ORDERED,  ADJUDGED  AND  DECREED 
that  if  the  defendant  shall  fail  to  pay  to  the  plaintiff  on  or 
before  30  days  from  date  the  sum  decreed  to  be  due  plaintiff 
under  paragraph  one,  herein,  that  thereupon  the  whole  amount 
of  said  contract  with  interest  and  taxes  shall  become  due  and 
payable  to  the  plaintiff,  which  said  sum  so  clue  for  principal, 
interest  and  taxes  at  this  date  is  decreed  to  be  the  sum  of 

dollars  and  the  sum  remaining  unpaid  under  said 

contract  is  decreed  to  be  the  sum  of dollars  and 

that  upon  failure  to  pay  the  plaintiff  said  sum  mentioned  in 
paragraph  one  on  or  before  thirty  days  from  this  date,  the 

plaintiff  may  after  the day  of cause  all 

and  singular,  the  premises  mentioned  in  the  bill  of  complaint 
and  in  said  contract  and  hereinafter  described,  to  be  sold  at 
public  auction  by  or  under  the  direction  of  the  Circuit  Court 

Commissioner  for  the  County  of for  said  full  sum  of 

money.  Advertisement  and  notice  of  such  sale  shall  not  com- 
mence until  after  the .....day  of That  said 

commissioner  give  public  notice  of  the  time  and  place  of  such 
sale  according  to  the  course  and  practice  of  this  Court  in  case 
of  sale  under  decrees  of  foreclosure  of  mortgages  and  of  the 
statute  in  such  case  made  and  provided  and  that  the  plaintiff 
or  the  defendant  may  be  the  purchaser  or  purchasers  of  said 
premises  on  such  sale  and  that  said  commissioner  execute  a 
deed  to  the  purchaser  or  purchasers  of  said  premises  on  said 
sale;  that  said  commissioner  out  of  the  proceeds  of  said  sale, 
pay  to  the  plaintiff  or  to  his  attorneys,  his  costs  in  this  suit 
to  be  taxed  also,  the  amount  so  decreed  to  be  paid,  as  afore- 
said and  the  interest  thereon,  as  aforesaid  or  so  much  thereof 
as  the  amount  realized  from  said  sale  will  pay  of  the  same  and 
that  the  said  commissioner  take  a  receipt  for  the  amount  so 
paid  and  file  the  same  with  his  report  of  said  sale  and  of  his 
doing  thereon  and  that  he  bring  the  surplus  money  arising 
from  said  sale,  if  any  thereby,  into  this  Court  without  delay 
to  abide  the  further  order  of  this  Court. 

4.  That  the  defendants  herein  (here  name  them  if  there  is 
more  than  one),  and  all  persons  claiming  or  to  claim  under 


§191]  FORECLOSURE   OF   VENDOR'S   LIEN  411 

them  or  any  of  them,  or  any  person  who  has  come  into  the 
possession  of  said  premises  since  the  filing  of  the  lis  pendens 
in  this  cause,  shall  be  upon  said  sale,  forever  barred  and  fore- 
closed from  any  and  all  equity  of  redemption  and  claim 
thereto  and  to  said  premises  so  sold  and  from  any  part  and 
parcel  and  that  the  purchaser  upon  said  sale  shall  be  entitled 
to  immediate  possession  of  said  premises  after  the  expiration 
of  eight  days  from  the  filing  of  an  order  confirming  said  sale. 

5.  It  is  further  ordered  that  if  the  money  arising  from  said 
sale  shall  be  insufficient  to  pay  the  amount  hereby  decreed  to 
be  due  the  plaintiff  with  the  interest  thereon  and  the  costs 
and  expenses  of  sale,  as  aforesaid,  then  in  that  case  the  said 
commissioner  shall  specify  the  amount  of  such  deficiency  in 
his  report  of  said  sale  and  that  the  plaintiff  have  leave  upon 
the  coming  in  of  said  report  and  its  confirmation,  to  apply  for 
execution  for  such  deficiency  against  the  defendant  who  is 
hereby  decreed  to  be  personally  liable  for  the  debts  secured  by 
said  contract. 

6.  That  the  description  and  boundaries  of  the  property 
authorized  to  be  sold,  by  virtue  of  this  decree,  are  as  follows: 
(Here  insert  complete  legal  description  of  the  property). 


Circuit  Judge. 

§  191.  Commissioner's  Deed  on  Foreclosure  Sale. 

THIS  INDENTURE  made  the day  of , 

A.  D.  19 ,  between a  Circuit  Court  Commissioner 

in  and  for  the  county  of State  of  Michigan,  residing 

in  said  county,  hereinafter  referred  to  as  party  of  the  first  part 

and hereinafter  referred  to  as  party  of  the  second 

part,  Witnesseth: 

Whereas,  at  a  session  of  the  circuit  court  for  the  county  of 

in  Chancery  at  the  county  house  in  the 

in  said  county,  on  the day  of A.  D.  19 , 

it  was  among  other  things,  Ordered,  Adjudged  and  Decreed  by 
said  court  in  a  certain  cause  then  pending  in  said  court  be- 
tween A.  B.  plaintiff  and  C.  D.  defendant,  brought  for  the  pur- 
pose of  foreclosing  a  certain  land  contract  bearing  date  of  the 

day  of (if  land  contract  is  recorded,  here 

describe  the  liber  and  page  number  where  recorded  that  all 


412  THE  LAW  OF  LAND  CONTRACTS  [§  191 

and  singular  the  premises  mentioned  and  set  forth  in  the  bill 
of  complaint  in  said  cause,  or  so  much  thereof  as  should  be 
necessary  to  satisfy  the  amount  due  the  plaintiff  of  the  princi- 
pal, interest  and  costs  of  said  suit  be  sold,  by  or  under  the 
direction  of  the  circuit  court  commissioner  in  and  for  said 
county  at  public  auction  in  the  county  where  said  premises  or 
the  greater  part  thereof  were  situated,  the  said  commissioner 
first  giving  public  notice  of  the  time  and  place  of  said  sale 
according  to  the  course  and  practice  of  said  court  and 

Whereas,  the  said  party  of  the  first  part  hereof  in  pur- 
suance of  the  order  and  decree  of  said  court  did  on  the 

day  of in  the  year  A.  D.  19 ,  sell  at  public  auction 

at  the in  the  county  of State  of  Michigan, 

said  premises  hereinafter  particularly  described,  having  first 
given  the  previous  notice  of  the  time  and  place  of  said  sale  as 
by  the  order  and  decree  aforesaid  and  the  statutory  provisions 
relating  thereto,  at  which  sale  the  said  premises  were  sold 
and  struck  off  to  said  party  of  the  second  part  to  these  presents 
to-wit :  (Here  insert  name  of  party  of  second  part)  for  the  sum 

of ,  that  being  the  highest  sum  bid  for  the  same  and 

he  being  the  highest  bidder. 

Now,  therefore,  this  indenture  witnesseth  that  the  party  of 
the  first  part  to  these  presents  in  order  to  give  and  to  effect 
the  said  sale  so  made  as  aforesaid,  in  pursuance  of  said  decree 
and  order  of  said  court  and  also  by  virtue  of  the  statute  in  such 
cases  made  and  provided  and  in  consideration  of  the  premises 

and  the  sum  of paid  by  said  party  of  the  second 

part  to  these  presents,  to  the  said  party  of  the  first  part  hereto 
the  receipt  whereof  is  hereby  confessed  and  acknowledged,  has 
granted,  bargained,  sold,  alienated,  released,  conveyed  and  con- 
firmed and  by  these  presents  doth  grant,  bargain,  sell,  alien, 
release,  convey  and  confirm  unto  the  said  party  of  the  second 
part  and  to heirs  and  assigns  forever,  all  the  fol- 
lowing lands  and  premises  situated  in  the of 

in county  and  State  of  Michigan  known  and  de- 
scribed as  follows  to-wit:  (herein  insert  description)  together 
with  all  and  singular,  the  rights,  title,  easements,  privileges, 
hereditaments  and  appurtenances  to  the  same  belonging  or  in 
any  ways  appertaining  to  have  and  to  hold  the  said  premises 


§  193]  FORECLOSURE   OF  VENDOR'S   LIEN  413 

above  described  and  hereby  intended  to  be  granted  and  con- 
veyed unto  the  said  party  of  the  second  part heirs 

and  assigns  forever. 

IN  WITNESS  WHEREOF  the  said  party  of  the  first  part, 
Circuit  Court  Commissioner  as  aforesaid,  has  hereto  set  his 
hand  and  seal  the  day  and  date  first  above  written. 

Signed,  sealed  and  delivered  in  the  presence  of 


Circuit  Court  Commissioner. 


§  192.  Notice  of  Sale  by  Circuit  Court  Commissioner — Form. 

In  pursuance  of  a  decree  of  the  Circuit  Court  for  the  County 

of ,  in  Chancery,  made  and  entered  on  the 

day  of A.  D.,  19 ,  in  the  above  entitled  cause,  the 

undersigned  subscriber,  a  Circuit  Court  Commissioner  of  the 

County  of ,  shall  sell  at  public  auction  or  vendue  to 

the  highest  bidder  at  the  front  door  of  the  court  house  in  the 

city  of in  said  county  of on  the 

day  of A.  D.  19 ,  at  the  hour  of o'clock 

in  the noon  of  that  day,  all  those  certain  lands  and 

premises  being  in  situate,  etc.   (here  describe  land,  inserting 
complete  legal  description). 

§  193.  Affidavit  of  Posting  Notices  of  Sale — Form. 

State  of  Michigan, 


County  of 

.of  (here  insert  name  of  deponent)  of. 
(here  state  residence)  in  said  County,  being  first  duly  sworn, 

deposes  and  says  that  on  the day  of ,  A. 

D.  19 ,  he  posted  up  one  notice  of  sale,  of  which  the  follow- 
ing is  a  true  and  complete  copy,  at  each  of  the  following  named 
places  in  the of ,  in  said  county,  to- wit: 

One  at (here  describe  place  of  posting).    One  at 

(here  describe  place  of  posting)  and  one  at 

(here  describe  place  of  posting)  the  same  being  three  public 

places  in  said  county  of ,  and  that  each  and  all  of 

said  notices  were  conspicuously  and  securely  posted,  and  were 


414  THE  LAW  OF  LAND  CONTRACTS  [§  193 

in  words  and  figures  as  follows,  to- wit:   (here  paste  copy  of 
notice  posted). 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19 


Notary  Public County,  Mich 

§  194.  Circuit  Court  Commissioner's  Report  of  Sale — Form. 

(Caption  of  Cause.) 

(Address  to  the  Court.) 

In  pursuance  and  by  virtue  of  a  decree  of  this  Court,  made 

in  the  above  entitled  cause,  bearing  date  the day  of 

in  the  year  one  thousand  nine  hundred  and 

by  virtue  of  which  decree,  it  was,  among  other  things,  ordered 
adjudged  and  decreed  that  all  and  singular  the  premises  men- 
tioned in  bill  of  complaint  in  this  cause  and  hereafter  described, 
or  so  much  thereof  as  might  be  sufficient  to  raise  the  amount 
due  the  plaintiff,  for  the  principal,  interest  (taxes,  insurance 
and  other  charges  included  in  the  decree)  and  costs  in  this  case, 
provided  a  portion  of  said  premises  might  be  sold  separately 
without  material  injury  to  parties  interested,  to  be  sold  at 
public  auction  by  or  under  the  direction  of  a  Circuit  Court  Com- 
missioner of ....County,  Michigan,  at  any  time  after 

the... day  of in  the  year  19 That  said 

sale  be  made  in  the  County  where  said  premises  or  the  greater 
part  thereof  are  situated. 

That  the  Commissioner  give  public  notice  of  the  time  and 
place  of  such  sale,  according  to  the  statute  and  the  course  and 
practice  of  this  Court  and  that  the  plaintiff  or  any  parties  to 
this  cause  might  become  the  purchaser  and  that  said  Commis- 
sioner execute  deed  or  deeds  to  the  purchaser  or  purchasers  of 
said  premises  on  said  sale.  That  said  Commissioner,  out  of  the 
proceeds  of  said  sale,  pay  to  the  plaintiff  or  the  attorney  for 

the  plaintiff costs  in  this  suit  to  be  taxed,  and  also 

the  amount  reported  due,  as  aforesaid,  together  with  interest 
thereon  from  the  date  of  said  report,  or  so  much  thereof  as  the 
purchase  money  of  said  premises  will  pay  of  the  same,  and 
that  the  said  commissioner  take  receipts  for  the  amount  so  paid 
and  file  the  same  with  his  report  and  that  he  bring  the  surplus 


§  194]  FORECLOSURE  OF  VENDOR'S  LIEN  415 

moneys  arising  from  such  sale,  if  any  there  be,  into  this  Court 
without  delay  to  abide  the  further  order  of  this  Court;  and 
that  if  the  moneys  arising  from  said  sale  be  insufficient  to  pay 
the  amount  so  reported  due  to  the  plaintiff  with  interest,  cost 
and  expenses  of  sale  as  aforesaid,  that  said  commissioner 
specify  the  amount  of  such  deficiency  in  his  report  of  said 
sale. 

I,  the  subscriber said  Circuit  Court  Commissioner, 

do  respectfully  certify  and  report,  that  having  been  charged 
by  the  attorney  for  the  plaintiff  with  the  execution  of  said 
decree,  I  advertised  said  premises  to  be  sold  by  me  at  Public 
Auction  to  the  highest  bidder  at  the  front  door  of  the  court 

house  in  the of in  the  said  County  of 

(that  being  the  placed  of  holding  the  circuit  court  for  the 

County  of )   on  the day  of in 

the  year  one  thousand  nine  hundred That  previous 

to  said  sale  I  caused  notice  thereof  to  be  publicly  advertised  for 
six  successive  weeks  as  follows:  By  causing  printed  notices 
thereof  to  be  securely  fastened  up  and  posted  at  least  six 
weeks  prior  to  the  day  said  premises  were  advertised  to  be 

sold  in  three  public  places  in (here  insert  the  name 

of  city)  where  said  premises  were  to  be  sold,  an  affidavit  show- 
ing the  fastening  up  and  posting  of  notices  is  hereto  attached, 
marked  "Exhibit  A,"  and  made  a  part  of  this  my  report,  by 
causing  a  notice  of  said  sale  to  be  printed  once  in  each  week 
during  the  six  successive  weeks  preceding  said  sale  in  the 

,  a  public  newspaper  printed  and  circulating  in  the 

County  of ,  as  appear  by  affidavits  annexed  hereto, 

and  marked  "Exhibit  B,"  which  notice  contains  a  description 
of  said  premises. 

I  further  report  that  on  the  said day  of in 

the  year  one  thousand  nine  hundred  and ,  the  day 

of  which  said  premises  were  so  advertised  to  be  sold,  as  afore- 
said I  attended  at  the  time  and  place  fixed  for  said  sale,  and 
exposed  said  premises  for  sale  at  public  auction  or  vendue  to 
the  highest  bidder  and  the  said  premises  were  then  and  there 

fairly  sold  and  struck  off  to (here  insert  name  of 

purchaser)  for  the  sum  of dollars,  he  being  the 

highest  bidder  therefor,  and  that  being  the  highest  sum  bid. 


416  THE  LAW  OF  LAND  CONTRACTS  [§  194 

And  I  do  further  certify  and  report  that  I  have  executed, 
acknowledged  and  delivered  to  the  said  purchaser  the  usual 
commissioner's  deed  for  said  premises,  the  attorney  for  the 
plaintiff  having  produced  a  certificate  of  the  enrollment  of  the 
final  decree,  in  said  cause,  which  certificate  is  hereto  annexed, 
marked  "Exhibit  C,"  and  made  a  part  hereof  and  have  paid 
over  or  disposed  of  the  purchase  money,  or  proceeds  of  said 
sale,  as  follows,  to-wit:    I  have  paid  to  the  attorney  for  the 

plaintiff  the  sum  of dollars,  being  the  costs  of  this 

suit  as  taxed,  together  with  interest  thereon  from  the  date  of 
said  taxation  to  the  day  of  the  sale  and  have  taken  a  receipt 
therefor,  which  is  hereto  annexed. 

I  further  report  that  I  have  paid  to the  plaintiff 

in  said  cause  the  sum  of dollars,  as  provided  in  said 

decree  and  have  taken  his  receipt  for  the  full  amount  decreed 
to  be  due  him,  which  receipt  is  hereto  attached,  marked  "Ex- 
hibit D,"  and  made  a  part  hereof. 

I  further  certify  and  report  that  the  moneys  arising  from 
said  sale  are  more  than  sufficient  to  pay  the  amount  so  reported 
to  be  due  the  plaintiff  with  interest,  costs  and  expenses  of  sale 
as  aforesaid  and  I  hereby  specify  the  amount  of  such  surplus 

to  be  the  sum  of dollars   (if  the  premises  sell  for 

less  than  the  amount  decreed  to  be  due  the  plaintiff,  together 
with  the  interest  costs  and  charges,  specify  the  amount  of 
such  deficiency  instead  of  reporting  a  surplus). 

I  further  report  that  I  have  retained  in  my  hands  the  sum 
of dollars,  being  the  amount  of  my  fees  and  dis- 
bursements on  said  sale,  as  will  appear  by  reference  to  the 
statement  thereof,  annexed  to  this  my  report  marked  "Exhibit 
E,"  and  made  a  part  hereof. 

I  do  further  certify  and  report  that  the  premises  so  sold 
and  conveyed  as  aforesaid  were  described  in  said  decretal  order 
and  in  the  deed  so  executed  by  me  as  aforesaid  as  follows, 
to-wit:  (insert  description  of  each  parcel  sold  and  to  whom 
sold). 


Circuit  Court  Commissioner. 


8  1951  FORECLOSURE  OF  VENDOR'S  LIEN  417 

§  195.  Exhibit  C— Statement  of  Fees  and  Disbursements  by 
Circuit  Court  Commissioner  on  Sale. 

Disbursements 

Printer's  bill  (publication  of  notice  of  sale) 

Printer's  bill    (publication  of  notice  of  adjournment  of 

sale)    

Proof  of  publication  of  notice  of  sale $0.25 

Proof  of  publication  of  notice  of  adjournment  of  sale 25 

Certificate  of  acknowledgment 25 


Total  Disbursement  

Fees 

Drawing  advertisement  (notice  of  sale) $2.00 

Drawing  advertisement  (notice  of  adjournment  of  sale)....  2.00 

Posting  notices  of  sale 1-00 

Mileage, miles,  at  10  cents  a  mile 

Posting  notices  of  adjournment  of  sale 1.00 

Mileage, miles,  at  10  cents  a  mile 

Attending  at  time  and  place  of  sale,  and  adjourning  the 

same  2.00 

Mileage  both  ways, miles,  at  10  cents  a  mile 

Attending  and  making  sale 3.00 

Mileage  both  ways, miles,  at  10  cents  a  mile.... 

Executing  and  making deed  at 2.00 

Certifying  payment 2.00 

Report  of  sale folios  at  15  cents  a  folio 

Total  disbursements 

Total  fees 

Recapitulation 

$ Principal  and  interest  and  other  moneys  due 

at  date  of  sale. 

$ Cost  and  interest  due  at  date  of  sale. 

$ Commissioner's  fees,  costs  and  expenses  of 

sale. 

$ Total  amount  due  at  date  of  sale. 

$ Amount  realized  on  sale  of  promises. 

$ Amount  of  deficiency  (or  surplus)  reported. 

$ Amount  paid  to  complainant's  solicitor  on 

debt. 


418  THE  LAW  OP  LAND  CONTRACTS  [§  195 

$ Amount  paid  to  complainant's  solicitor  on 

costs. 
$ Amount  of  commissioner's  fees,  costs  and 

expenses  of  sale  retained. 
Dated ,  A.  D.  19 


Circuit  Court  Commissioner. 
County,  Michigan. 

§  196.  Forms    of    Receipts    from    Circuit    Court    Commis- 
sioner. 

(Caption  of  Cause.) 

Received  this day  of ,  A.  D.   192 , 

of ,  the  commissioner  who  made  the  sale  of  the 

premises  in  said  cause, dollars,  said  sum  being  part 

of  the  proceeds  of  said  sale  and  being  the  amount  of  plaintiff's 
cost  of  suit  as  taxed,  with  interest  thereon  to  date,  and  also 

the  sum  of dollars,  the  same  being  the  full  amount 

decreed  to  be  due  the  plaintiff  in  said  cause,  together  with 

interest  thereon  from  the day  of ,  A.  D. 

192 


§  196 A.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
— Foreclosure  of  Vendor's  Lien. 

BIGNELL  v.  FRANKS,  212  Mich.  236— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  and  Cross-Bill. 

(d)  Plaintiff's  Answer  to  Defendant's  Cross-Bill. 

(e)  Decree. 

(f)  Authorities  Cited  by  Plaintiff— Brief  for  Plaintiff. 

(g)  Authorities  Cited  by  Defendant— Brief  for  Defendant. 
NELSON  v.  BREITENW1SCHER,  194  Mich.  30— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Exhibits  "A"  and  "B",  the  Contracts  Relied  Upon. 

(d)  Motion  of  Defendant  to  Dismiss. 

(e)  Affidavit  to  Motion  to  Dismiss. 

(f)  Order  Dismissing  Bill. 

(The  Brief  of  Plaintiff  and  Defendant  has  not  been  included  for  the 
reason  that  the  appeal  has  to  do  with  the  question  of  the  mortgage  tax 
law  only.) 


§  196A] 


FORECLOSURE  OF  VENDOR'S  LIEN  419 


BIGNELL  v.  FRANKS,  212  Mich.  236— 

(a)  Brief  Statement  of  Fact. — A  bill  was  filed  to  foreclose  a  land 
contract.  The  defendant  showed  that  both  partise  had  been  operating 
under  a  later  agreement,  and  not  that  under  which  the  plaintiff's  favor, 
and  both  parties  appealed,  the  case  being  rewarded  after  affirming  the 
decree  in  part,  and  ordering  an  accounting  to  determine  the  exact  amount 
due  plaintiff. 

(b)  Bill  of  Complaint  — 

STATE  OF  MICHIGAN 
In  the  Circuit  Court  for  the  County  of  Ottawa, 
In  Chancery 
Jamies  Bignell, 

Plaintiff, 
v. 
James  A.  Franks,  et  al , 
Defendants. 

To  the  Circuit  Court  for  the  County  of  Ottawa,  in  Chancery: 

Complaining,  shows  to  the  court  your  orator,  Jamies  Bignell,  of  said 
county,  and  exhibits  this,  his  bill  of  complaint,  against  James  A.  Franks 
and  Martin  Van  Doom,  Jr.,  defendants  herein,  and  thereupon  your  orator 
states,  complains  and  charges  as  follows: 

I.  That  on,  to-wit,  the  10th  day  of  April,  1907,  your  orator  then  being 
the  owner  of  the  land  herein  described,  made  a  contract  to  sell  the 
same  to  defendant,  James  A.  Franks,  for  amounts  and  stated  payments 
therein  expressed,  copy  of  which  contract  is  as  follows: 

Duplicate  land  contract.  Jamies  Bignell  hereby  agrees  to  sell  to 
James  A.  Franks,  the  following  described  land  in  Ottawa  County,  Michi- 
gan, viz.:  Part  of  northwest  quarter  of  southeast  quarter  of  south- 
west quarter  of  section  twenty-one,  town  eight  north,  range  sixteen 
west,  in  Grand  Haven  city,  commencing  on  north  line  of  Washing 
ton  avenue,  183  feet  east  from  southwest  corner  thereof,  thence  north 
to  south  line  of  Columbus  avenue  when  extended  east;  thence  east 
on  said  south  line  of  Columbus  avenue,  extended,  444  feet;  thence 
south  132  feet;  thence  west,  parallel  with  south  line  of  Columbus 
avenue,  extended,  300  feet;  thence  south  132  feet  to  north  line  of  Wash 
ington  avenue,  and  west  on  said  line  to  place  of  beginning;  also  the 
canning  factory  building  partly  in  Columbus  avenue,  extended,  for 
twenty-eight  hundred  dollars,  to  be  paid  $100  per  year  for  three  years, 
and,  if  he  puts  up  an  additional  hothouse  on  the  land  costing  not  less 
than  $250,  it  shall  include  the  first  year's  payment  of  $100,  and  after 
three  years  the  payments  shall  be  not  less  than  $250  per  year,  with 
six  per  cent,  interest  to  be  paid  semi-annually  on  $2,500  from  this  date, 
and  on  the  $300  balance  to  be  paid  within  three  years,  there  is  to  be 
no  interest,  if  paid  when  due,  otherwise  six  per  cent,  interest  from  this 
date. 

Said  Bignell  is  to  build  sidewalk  in  front  of  said  land  on  Washington 
avenue. 


420  THE  LAW  0F  LAND  CONTRACTS  [§  196 A 

Said  Franks  shall  keep  all  taxes  on  the  land  paid  before  return  thereof, 
and  shall  keep  all  insurable  buildings  insured  against  loss  by  fire  for 
Bignell's  benefit,  to  apply  on  this  contract  purchase  price  until  final 
payment. 

Said  Franks  shall  remove  said  canning  house  and  all  other  buildings 
in  Columbus  avenue,  extended,  from  said  avenue  by  July  1st,  1907. 

If  said  Franks  shall  fail  to  make  payments,  or  any  payment,  or  perform 
any  other  condition  above,  this  contract  shall  be  void,  and  all  payments 
made  stand  forfeited  and  said  Franks,  his  heirs  and  assigns,  shall  be 
tenants  of  said  Bignell,  his  heirs  and  assigns,  and  may  be  ousted  as 
such  for  nonpayment  of  rent. 

If  said  payments  shall  be  made  and  conditions  performed,  said  Bignell, 
his  heirs  and  assigns,  shall  convey  the  land  to  said  Franks,  his  heirs 
and  assigns,  by  good  title  and  warranty  deed. 

In  case  of  forfeiture,  the  tenant  shall  have  the  right  to  harvest  all 
annual  crops  growing,  but  not  to  possession  of  the  premises  otherwise 

In  witness  whereof  the  parties  hereto  have  set  their  hands  and  seals 
this  10th  day  of  April,  1907,  in  duplicate. 

Jamies  Bignell  (Seal) 

Jas.  A.  Franks  (Seal) 

A  duplicate  of  said  contract  signed  by  the  parties  is  now  in  plaintiff's 
possession  and  will  be  shown  to  the  court  at  the  hearing  hereof,  and 
a  like  duplicate  copy  is  believed  to  be  in  possession  of  defendant,  Franks. 

II.  That  said  Franks  took  possession  of  said  land  described  in  said 
contract,  and  has  continued  since  the  making  thereof,  and  Is  still  In 
possession  thereof,  except  as  to  a  parcel  thereof  which  he  has  contracted 
to  sell  to  defendant,  Martin  Van  Doom,  Jr.,  for  $1,000,  of  which  said  Van 
Doom  has  taken  possession  and  is  now  building  a  house  thereon,  which 
parcel  is  described  as  follows,  or  may  be  so  described: 

"Part  of  northwest  quarter  of  southeast  quarter  of  southwest  quarter 
of  section  twenty-one,  town  eight  north,  range  sixteen  west,  bounded, 
viz.:  Commencing  on  north  line  of  Washington  avenue,  City  of  Grand 
Haven,  183  feet  east  of  southwest  corner;  thence  north  132  feet,  east 
50  feet,  south  132  feet  to  north  line  of  Washington  avenue,  and  west 
on  said  line  to  place  of  beginning." 

But  said  Franks  is  and  will  be  unable  to  give  said  Van  Doom  title 
to  said  lot  sold  to  him  except  it  comes  from  this  plaintiff,  and  this 
plaintiff  is  willing  to  and  here  offers  to  convey  said  lot  to  said  Van 
Doom  under  said  contract,  with  Franks  if  the  money  from  Van  Doorn, 
or  a  fair  and  reasonable  part  thereof  shall  be  paid  to  him,  plaintiff, 
and  he  will  take  the  balance  due  him,  or  to  become  due  to  him,  from 
said  Franks  on  a  lien  against  the  remainder  of  said  contract  land  held  by 
said  Franks. 

III.  That  said  Franks  paid  and  satisfied  plaintiff  under  said  contract  to 
and  including  October  10,  1909,  and  June  6,  1910,  the  amount  then  due 
thereon  except  $20.60  Interest;  that  thereafter  and  until  about  April 
25,  1911,  there  were  claims  made  by  said  Franks  concerning  other  deal 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  421 

previous  to  said  contract  between  plaintiff  and  said  Franks,  all  of  which 
were  settled  by  said  contract,  and  such  claims  were  fully  settled  and 
satisfied  and  abandoned  by  said  Franks,  and  on  said  April  25,  1911. 
$325.00,  part  of  the  amount  then  due  from  said  Franks,  was  paid  on  said 
contract  by  Mr.  Farr,  his  attorney,  and  thereafter,  October  10,  1911, 
$67.50  was  like  paid  by  Mr.  Farr  for  Franks,  and  April  10,  1912,  $317.50 
was  like  paid  by  Franks'  check  endorsed  by  Mr.  Farr,  and  thereafter 
until  April  2,  1918,  all  payments  of  principal  and  interest  on  said  con- 
tract were  promptly  made  by  said  Franks  when  due,  he  having  abandoned 
the  claims  he  had  made  from  June  6,  1910,  to  April  25,  1911,  and  he  and 
his  said  attorney  having  then  paid  all  arrearages  on  said  contract. 

IV.  That  there  were  $250.00  due  on  principal  and  $22.50  interest  on 
same  for  six  months  due  from  Franks  to  plaintiff  on  said  contract 
April  10,  1918,  and  April  15th  a  polite  request  of  payment  was  made  to 
him  by  plaintiff's  attorney,  to  whom  all  payments  have  been  made 
since  the  settlement  of  April  25,  1911,  but  the  same  has  not  been  paid 
nor  any  part  of  it,  and  by  the  terms  of  the  contract  the  same  is  void 
by  reason  of  said  nonpayment  and  all  payments  made  forfeited,  but 
plaintiff  is  not  disposed  to  insist  on  such  forfeiture,  that  the  entire 
amount  of  said  contract  purchase  price  now  unpaid  at  date  of  drafting 
this  bill  of  complaint  is  the  sum  of  $750.00  and  interest  thereon  at  six 
per  cent,  per  year  from  October  10,  1917,  $27.13,  total  amount  due  May 
17,  1918,  $777.13,  for  which  amount  claims  a  lien  and  for  foreclosure 
thereof. 

V.  That  April  20,  1918,  plaintiff  received  a  letter  from  Mr.  Lillie, 
defendant  Franks'  attorney,  suggesting  some  claim  of  Franks  against 
plaintiff  which  plaintiff  does  not  understand,  but  believes  it  to  be  con- 
cerning some  matter  settled  between  plaintiff  and  him  in  making  said 
contract  and  afterwards  revived  by  said  Franks  in  his  refusal  to  further 
make  payments  thereon  June  6,  1910,  and  April  25th  which  claim,  what- 
ever it  was,  was  abandoned  and  given  up  by  Franks  under  advise  of 
Mr.  Farr,  his  attorney,  and  by  his  steady  and  regular  payment  of  amounts 
due  from  the  last  date  to  April  10,  1918,  when  the  last  refusal  was  made. 

VI.  That  by  said  contract,  plaintiff  has  the  right  to  declare  the  same 
forfeited  and  he  hold  the  land  described  therein  and  contracted  to  be 
sold  free  therefrom,  or  to  have  his  lien  thereon  determined  to  be  the 
amount  unpaid  thereon,  all  of  which  has  become  due  by  reason  of  said 
default  and  refusal  to  pay,  and  foreclosure  thereof,  and  he,  not  believing 
it  to  be  equitable  to  claim  forfeiture,  is  willing  to  have  his  lien  determined 
by  the  court  and  sale  of  the  land  therefor,  and  in  such  case  he  charges 
the  fact  to  be  that  the  remainder  of  the  land,  after  deducting  the  lot 
described  as  sold  by  Franks  to  defendant  Van  Doom,  should  be  first 
sold  and  if  it  shall  bring  sufficient  to  pay  plaintiff's  lien,  as  plaintiff 
believes  it  will,  that  the  lot  sold  defendant  Van  Doom,  be  released 
therefrom,  and  this  plaintiff  will  convey  the  entire  land  described  in  the 
contract  to  Franks  and  he  can  convey  his  lot  to  Van  Doom,  or  plaintiff 
will  convey  his   lot  to  Van  Doom,  and  the   balance  to  Franks,   as   the 


422  THE  LAW  OF  LAND  CONTRACTS  [§  196A 

court  may   determine,   all   which  propositions  are   made  by  plaintiff  in 
his  offer  to  do  absolute  and  complete  equity  in  the  premises. 

VII.  In  consideration  of  the  premises  plaintiff  prays  the  aid  of  the 
court  as  follows: 

(a)  That  the  court  will  hear  the  proofs  and  allegations  of  the  parties 
and  determine  and  decree  the  several  and  gross  amounts  paid  by 
defendant  Franks,  on  said  contract,  and  the  amount  unpaid  thereon, 
and  the  amount  due  thereon,  and  decree  payment  thereof  within  such 
reasonable  time  after  entry  of  the  decree  as  shall  be  reasonable,  which 
plaintiff  suggest  should  be  twenty  days. 

(b)  That  the  court  decree  that  such  amount  determined  to  be  due 
is  a  lawful  lien  on  the  land  described  in  said  contract,  and  that  the 
same  be  sold  to  satisfy  such  lien  by  a  commissioner  of  the  court,  the 
land  still  held  by  said  Franks  to  be  sold  first,  and  if  it  shall  not  bring 
sufficient  to  pay  the  same,  then  that  the  part  sold  to  defendant,  Van 
Doom,  be  sold  to  satisfy  the  deficiency. 

(c)  That  plaintiff,  or  any  other  interested  party  may  lawfully  bid  at 
such  sale. 

(d)  That  the  commissioner  making  such  sale  give  the  usual  legal 
notice  thereof  required  by  law  in  making  chancery  sales. 

(e)  That  the  commissioner  making  such  sale  made  the  usual  com- 
missioner's deed  to  the  purchaser  or  purchasers  at  such  sale,  and  that 
by  such  sale  all  rights  of  defendants  herein  to  said  land  or  such  part 
or  parts  of  same  as  shall  be  sold,  be  forever  foreclosed  and  cut  off, 
and  that  the  purchaser  or  purchasers  at  such  sale  be  let  into  possession 
by  the  writ  of  assistance  of  the  court  according  to  its  course  and  practice. 

(f)  That  if  the  court  shall  decree  that  there  be  but  the  payment 
due  on  said  contract  April  2,  1918,  and  interest,  that  it  further  decree 
the  payments  due  in  one  and  two  years  from  that  date  to  be  lawful  liens 
on  said  land,  and  that  sale  may  be  had  therefor  when  they  shall  become 
due  unless  they  shall  be  duly  paid,  with  interest  accruing  thereon,  as 
prayed  above,  to  the  end  that  plaintiff  shall  not  be  required  to  file 
further  bills  for  foreclosure  when  each  payment  shall  become  due. 

(g)  That  your  orator  may  have  such  other  and  further  relief  in  the 
premises  as  shall  be  agreeable  to  equity. 

And  your  orator  will  ever  pray,  etc. 

Jamies    Bignell, 

Plaintiff, 
By  Charles  E.  Soule, 

His  Attorney. 
Plaintiff, 
(c)  Answer  and  Cross-Bill. —  (Caption.)  The  joint  and  several  answers 
of  the  above  named  defendants  to  the  bill  of  complaint  of  the  above  named 
plaintiff  except  that  the  above  named  defendant,  Martin  Van  Doom,  Jr., 
does  not  claim  to  know  anything  personally  about  the  transactions  be- 
tween said  plaintiff  and  said  defendant  Franks,  but  does  know  the 
arrangements  between  the  defendant   Franks,  and  defendant   Van  Doom, 


§  196A] 


FORECLOSURE  OF  VENDORS  LIEN  423 


Jr.,  and  the  cross-bill  of  James  A.  Franks  asking  for  affirmative  relief. 

1.  For  answer  to  the  allegations  in  the  first  paragraph  of  plaintiff's 
bill  of  complaint,  these  defendants  admit  that  the  contract  set  forth 
therein  is  a  true  copy  of  the  agreement  made  between  defendant 
Franks  and  plaintiff  Bignell,  but  deny  that  that  contract  was  the  real 
contract  under  which  the  plaintiff  Bignell,  and  defendant  Franks,  were 
operating  and  did  operate. 

2.  For  answer  to  the  allegations  in  the  second  paragraph  of  said  bill 
of  complaint,  these  defendants  admit  that  the  said  Franks  took  possession 
of  the  land  described  in  the  contract  in  paragraph  one  and  has  con- 
tinued in  possession  thereof  until  the  spring  when  defendant  Franks 
sold  to  defendant  Van  Doom,  Jr.,  the  property  described  in  said  second 
paragraph  of  plaintiff's  bill,  and  that  Franks  sold  it  for  $1,000.00,  and 
admit  that  said  Franks  will  not  be  able  to  give  Van  Doom  a  good  record 
title  to  said  premises  until  the  same  is  conveyed  to  him  by  plaintiff 
Bignell,  but  both  defendants  deny  that  the  said  Bignell  is  entitled  to 
have  any  part  of  the  contract  price  paid  to  him  because  defendant  Franks 
says  that  plaintiff  Bignell  is  indebted  to  him  under  the  agreement  that 
they  have  always  done  business  under,  and  that  plaintiff  Bignell  owes 
defendant  Franks  more  than  enough  to  pay  all  the  claimed  balance  on 
the  contract  set  forth  in  paragraph  one  of  this  bill  of  complaint,  which 
will  hereafter  be  stated  in  subdivision  two  of  this  answer  and  cross-bill. 

3.  For  answer  to  the  allegations  in  the  third  paragraph  of  said  bill 
of  complaint,  these  defendants  say  that  they  admit  that  said  Franks 
paid  in  full  on  said  contract  mentioned  in  paragraph  one  of  said  bill 
of  complaint  and  performed  each  and  every  obligation  therein  men 
tioned  for  him  to  perform  up  to  and  including  June  6,  1910,  admit 
that  defendant  Franks  did  make  claims  in  reference  to  said  contract, 
but  deny  that  all  of  such  claims  were  settled  by  said  contract  and 
deny  that  such  claims  were  fully  settled  and  satisfied  and  abandoned 
by  said  Franks;  admit  that  the  payments  mentioned  in  paragraph  three 
of  said  bill  were  made;  admit  that  all  payments  of  principal  and  interest 
were  promptly  paid  by  Franks,  but  deny  that  he  abandoned  the  claims 
he  had  made  from  June  6,  1910,  to  April  25,  1911,  and  now  claims  that 
plaintiff  Bignell  owes  him  more  than  the  amount  claimed  to  be  due  on 
the  contract  set  up  in  paragraph  one  in  said  bill  of  complaint. 

4.  For  answer  to  the  allegations  in  the  fourth  paragraph  of  said  bill 
of  complaint,  this  defendant  says  that  according  to  the  terms  of  said 
contract  mentioned  in  paragraph  one  of  said  bill  of  complaint,  there 
would  be  $250.00  due  on  the  principal  and  $22.50  interest,  April  10,  1918, 
but  says  under  the  terms  of  agreement  actually  made  and  performed 
between  the  plaintiff  Bignell  and  the  defendant  Franks,  plaintiff  Bignell 
owes  Franks  more  than  the  amount  claimed  to  be  due  on  the  con- 
tract set  up  in  paragraph  one  of  the  bill  of  complaint;  neither  admit 
nor  deny  the  statement  in  said  paragraph  in  reference  to  payments, 
and  deny  that  all  payments  have  been  forfeited;  neither  admit  nor 
deny  that  the  entire  amount  of  said  contract  purchase  price  is  $750.00 


424  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

and  interest  at  six  per  cent    from  October  10,  1917,  making  a  total  of 
$777.13. 

5.  For  answer  to  the  allegations  in  the  fifth  paragraph  of  said  bill  of 
complaint,  these  defendants  admit  that  a  letter  was  written  by  Lillie, 
Lillie  &  Lillie  suggesting  that  plaintiff  Bignell  and  defendant  Franks  get 
together  and  settle  matters  between  them,  and  suggest  that  they  need 
no  attorneys  to  do  it,  and  they  say  that  the  plaintiff  had  the  best  reason 
in  the  world  to  believe  that  those  suggestions  were  in  reference  to 
claims  of  said  Franks,  and  they  deny  that  any  matter  between  said 
plaintiff  and  said  Franks  has  ever  been  settled  and  deny  that  any  claims 
of  said  Franks  have  ever  been  abandoned  and  deny  that  any  claims 
of  said  Franks  ever  made  were  given  up  by  Franks  under  the  advice 
of  Mr.  Farr,  his  attorney,  and  deny  that  any  claims  made  by  Franks 
were  ever  abandoned  by  his  steady  and  regular  payments  of  amount 
due  from  the  last  date  to  April  10,  1918,  when  the  last  refusal  was 
made,  and  claim  that  said  Franks  has  always  insisted  that  he  has  money 
coming  to  him  from  said  Bignell,  as  will  hereafter  more  fully  appear. 

6.  For  answer  to  the  allegations  in  the  sixth  paragraph  of  the  said 
bill  of  complaint,  these  defendants  say  that  the  said  Bignell  has  no  right 
to  declare  the  contract  forfeited  and  hold  the  land  described  therein 
free  therefrom  nor  to  have  any  lien  thereon  determined  to  be  the  amount 
unpaid  thereon.  And  they  deny  that  there  has  been  any  default  on 
said  contract  and  claim  that  said  Bignell  knows  that  under  the  dealings 
between  him  and  Franks,  that  he,  Bignell,  owes  said  Franks  at  the 
present  time,  as  will  more  fully  and  hereafter  appear;  that  they  admit 
that  it  would  be  inequitable  to  claim  a  forfeiture  because  the  plaintiff 
knows  that  said  contract  has  been  fully  paid  and  that  plaintiff  now 
owes  said  Franks,  and  defendant  Franks  is  willing  to  have  the  plain- 
tiff's claim  determined  by  the  court  under  all  the  circumstances  be- 
tween the  parties,  and  admit  that  the  remainder  of  the  land,  after 
deducting  the  lot  sold  by  defendant  Franks  to  Van  Doom  should  be 
first  sold,  if  any,  and  is  worth  more  than  enough,  many  times  over,  to 
pay  any  pretended  claim  that  plaintiff  now  makes;  that  they  admit 
that  In  equity  and  justice  the  plaintiff  should  convey  the  whole  property 
mentioned  in  said  contract  to  defendant  Franks,  free  and  clear  from 
any  lien  whatever,  and  say  that  when  the  plaintiff  does  actual  justice 
and  equity  between  himself  and  defendant  Franks  he  will  convey  the 
entire  property  described  in  the  contract  to  defendant  Franks,  beside*) 
that  pay  defendant  Franks  the  money,  he,  plaintiff,  has  in  his  hands 
which  now  belongs  to  defendant  Franks,  and  that  all  defendant  Franks 
desires  is  that  plaintiff  shall  be  compelled  "to  do  absolute  and  complete 
equity  in  the  premises." 

7.  For  answer  to  the  allegations  in  the  seventh  paragraph  of  the 
said  bill  of  complaint,  this  defendant  denies  that  the  plaintiff  is  entitled 
to  the  relief  prayed  for  in  paragraph  seven  of  his  bill  of  complaint  and 
asks  that  said  bill  of  complaint  be  dismissed  with  costs  to  defendants. 
Subdivision  II  is  in  the  nature  of  a  cross-bill. 


§  196A] 


FORECLOSURE  OF  VENDOR'S  LIEN  425 


II.  This  defendant,  Franks,  claims  affirmative  relief  under  the  rules 
and  practices  of  this  court,  and  says: 

1.  That  shortly  after  he  received  a  letter  from  plaintiff  Bignell,  bear- 
ing date  March  16,  1907,  said  Bignell  called  on  him  in  pursuance  of  the 
terms  of  said  letter  and  that  they  then  talked  the  matter  over  in  ref- 
erence to  the  sale  of  said  property  deeded  to  said  plaintiff  by  said  Franks 
and  his  wife,  and  that  talk  was  put  in  writing  by  the  plaintiff  Bignell, 
and  also  in  substance  that  the  property  deeded  to  said  Bignell  was 
divided  into  lots  and  said  Bignell  and  said  Franks  talked  about  the 
price  that  each  lot  should  be  sold  for  and  that  said  Franks  was  to  have 
what  was  commonly  called  the  greenhouse  property  and  12  lots  and 
Bignell  was  to  have  the  lot  the  dwelling  house  was  on,  called  dwell- 
ing house  lots,  and  six  other  lots,  and  that  would  leave  18  lots  and  that 
those  18  lots  were  to  be  sold  by  Bignell  and  Franks  was  to  have  the 
net  profits  on  such  sales  and  the  net  profits  so  made  were  to  apply  on 
the  contract  that  Bignell  and  Franks  were  to  enter  into  in  reference  to 
said  property;  that  Franks  was  to  pay  $2800.00  for  the  greenhouse  prop- 
erty and  that  12  lots,  and  Bignell  was  to  have  the  house  lots  and  six 
other  lots  for  $2000.00;  that  afterwards  the  contract  that  is  being  fore- 
closed was  made  by  Franks  and  Bignell  under  the  terms  of  that  con- 
tract, among  other  things,  if  Franks  fixed  up  or  improved  the  greenhouse 
to  the  value  of  $250.00  the  $100.00  payment  for  the  first  year  should 
be  allowed  him  on  the  $2800.00  that  he  was  to  pay  for  the  greenhouse 
property,  and  12  lots  allotted  to  him;  that  the  12  lots  allotted  to  Franks 
have  not  been  sold  by  Bignell,  and  whether  Bignell  has  sold  the  six 
lots  allotted  to  him  defendant  Franks  knows  not  and  cares  not;  that 
De  Spelder  street  was  to  be  opened  up  and  conveyed  to  the  city  and 
Columbus  street  was  to  be  conveyed  to  the  city,  and  Wallace  street  was 
also  to  be  conveyed  to  the  city  so  that  there  would  be  access  from 
those  streets  to  the  land;  that  the  letter  bearing  date  March  16,  1907,  is 
in  the  words  and  figures  following: 

"Grand  Haven,  Mich.,  March  16,  1907.     Mr.  Franks,  City. 

Dear  Sir: — I  will  stop  Monday  morning. 

If  I  buy  the  whole  thing,  what  would  be  the  most  you  could  afford 
to  take  the  hothouses  and  12  lots  for,  or  would  you  be  willing  to  rent 
for  one  or  two  years  and  about  what  can  you  afford  to  pay?  Would 
you  be  willing  to  allow  me  10  per  cent,  net  on  all  money  invested?  You 
take  the  greenhouses  and  ten  and  one  fourth  lots  at  $300.00.  I  will  take 
the  house  and  six  lots  at  $2000.00.  You  have  all  the  net  profit  that  is 
made  to  apply  on  contract.  Resp., 

Jamies  Bignell." 

2.  That  Bignell  put  up  $6,473.63  to  complete  the  payment  on  the  con- 
tract that  Franks  had  with  Mrs.  Buswell  or  Mrs.  Coburn  in  order  to 
have  Franks  get  the  title  to  the  property  mentioned  in  the  deed  of 
Franks  and  wife  to  plaintiff  Bignell;  that  after  the  deed  was  made 
and  executed  and  the  contract  made  and  executed  which  is  being  fore- 
closed  and   some   time   about   the  last   of   December,   1900,   the   plaintiff 


426  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

Bignell  and  defendant  Franks  talked  the  matter  over  in  reference  to 
their  agreement  made  shortly  after  the  16th  day  of  March,  1907,  and 
Bignell  then  agreed  to  make  a  statement  showing  the  condition  of  the 
lots  and  the  amount  of  money  he  had  in  the  property  and  that  on  o: 
about  April  10,  1910,  he  presented  to  defendant  Franks  the  following 
statement:     "Lots  Cash 

7-8-400  400     1.00 

9-275 275 

11-225 225     2.75 

12-250  100 

25-140  40 

26-200  200 

27-200  200 

28-225  225 

29-225  225 

30-200 200 

31-175  175 

34-175  175 

35-150 150 

Road-400  400 

Franks-2700  100 

Dinsia-200  100     4.00 

Rent-245  245     3.00 

House  Lots-2000   

3  Lots  500  

8,885  3,435    1.00" 

and 

"Prin    6,473.63 

Till  1910  Apr.  Int 510.00 

Surveying  deeds  on  43.83 

Sidewalk    193.00 

Filling    75.00 

Abstracts  48.75 

Soule's  service 35.00 

Suit  on  St.  &  C.  Coburn. 32.50 

Tax  309.82 

Time 357.50 

Com    1,000.00 

9,079.03 
Insurance,  water,  repairs  on  house 55.00 


9,134.00 
8,885.00 

249.00" 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  427 

3.  That  before  that  time  defendant  Franks  had  made  the  improvements 
on  the  greenhouse  and  was  entitled  to  a  reduction  of  $100.00  mentioned 
in  the  contract  being  foreclosed  and  that  would  leave  the  amount  he 
had  to  pay  on  the  contract  $2,700.00,  as  stated  in  the  itemized  state- 
ment before  mentioned;  that  the  house  lots  were  put  down  in  said 
statement  as  of  the  value  of  $2,000.00,  and  a  road  was  put  down  at  the 
value  of  $400.00,  which  was  the  price  Bignell  got  for  that  part  of 
De  Spelder  street  that  was  deeded  to  the  City  of  Grand  Haven;  that 
all  of  the  expenses,  together  with  the  principal  sum  advanced  by  Bignell, 
was  put  down  on  his  statement,  including  the  principal,  the  interest, 
survey,  sidewalk,  filling,  abstract,  Soule*s  services,  money  paid  to  Coburn, 
taxes,  and  even  time  of  Bignell's  amounting  to  $375.50,  and  commis- 
sion of  $1,000.00,  and  even  a  charge  was  made  for  insurance  and  water 
pipes  on  the  house  that  Bignell  took,  and  Bignell  on  that  statement 
even  gave  credit  for  the  rents  he  had  received  from  his  property  and 
the  lot  that  he  had  sold  for  $200.00,  although  he  reported  only  $100.00 
cash  and  he  reported  three  lots  at  $500.00  and  that  made  up  his  six 
lots  that  he  was  to  have  and  did  have;  that  said  Franks  was  offered 
$100.00  by  Bignell  to  call  the  deal  square,  but  Franks  would  not  accept 
it  and  claimed  that  Bignell  owed  him  more  than  that  and  considerable 
more,  and  that  Franks  afterwards  figured  up  the  amount  of  the  profits 
Bignell  had  made  and  estimated  the  same  at  $1,000.00,  and  that  no 
part  of  this  has  ever  been  allowed  Franks  by  Bignell  on  said  contract, 
as  Bignell  agreed  to  do. 

4.  That  plaintiff  says  in  paragraph  three  of  the  bill  of  complaint: 
"That  said  Franks  paid  and  satisfied  plaintiff  under  said  contract  to 

and  including  October  10,  1909,  and  June  6,  1910,  said  amount  then  due 
thereon  except  $20.60  interest;  that  thereafter  and  until  about  April 
25,  1911,  there  were  claims  made  by  said  Franks  concerning  other  deals 
previous  to  said  contract  between  plaintiff  and  said  Franks,  all  of  which 
were  settled  by  said  contract,  and  such  claims  were  fully  settled  and 
satisfied  and  abandoned  by  said  Franks,  and  on  said  April  25,  1911, 
$325.00,  part  of  the  amount  then  due  from  said  Franks,  was  paid  on 
said  contract  by  Mr.  Farr,  his  attorney";  that  defendant  Franks  says 
that  that  statement  in  said  paragraph  three  of  the  bill  of  complaint 
is  an  acknowledgment  of  the  contract  that  he  now  claims  was  made 
after  said  letter  of  March  16,  1917,  was  received  by  him  from  said 
Bignell  and  acknowledges  that  said  defendant  Franks  was  making  a 
claim  that  said  moneys  should  be  credited  on  his  contract  which  is 
being  foreclosed  by  this  bill  of  complaint,  and  that  plaintiff  knew  when 
said  bill  of  complaint  was  made  and  signed;  that  said  Franks  had 
always  claimed  that  there  was  due  him  a  large  sum  from  the  sale  of 
said  lots  under  said  agreement  with  said  Bignell,  and  in  the  last  clause 
in  paragraph  six  of  said  bill  of  complaint,  plaintiff  says: 

"And  this  plaintiff  will  convey  the  entire  land  described  in  the  con- 
tract to  Franks  and  he  can  convey  his  lot  to  Van  Doom,  or  plaintiff 
will  convey  his  lot   to   Van   Doom   and   the   balance  to   Franks,   as  the 


428 


THE  LAW  OF  LAND  CONTRACTS  [§  196A 


court  may  determine,   all   of  which   propositions   are   made  by   plaintiff 
in  his  offer  to  do  absolute  and  complete  equity  in  the  premises";   and 
that  that  statement  in  said  paragraph  six  of  said  bill  of  complaint  offers 
to  do  absolute  and  complete  equity  in  the  premises,  and  defendant  Franks 
says  as  he  said  in  the  answer,  that  he  has  never  abandoned  any  claim 
and  still  insists  that  the  profits  Bignell  made  on  the  sale  of  the  eighteen 
lots  are  due  him  and  should  be  applied  on  the  contract  being  foreclosed. 
5.  And   defendant   Franks   further  says   that   no   settlement  was   ever 
made  and  that  he  never  abandoned  his  claim  for  said  profits,  but  made 
the   payments  on  the  contract  according  to  the   terms   of  the  contract 
until  the  amount  claimed  to  be  due  on  the  contract  was  less  than  the 
amount  that  he   is  entitled  to  have  credited  on  that  contract  by   said 
Bignell   to   keep   said  Bignell  from   foreclosing   said   contract   and  com- 
pelling him  to   lose   the   property  by   not   being   able   to   pay   until  the 
amount  due  on  the  contract  being  foreclosed  was  less  than  the  amount 
Bignell  agreed  to  credit  on  said  contract,  which  has  not  been  credited; 
that  the  property  described  in  the  deed  from  Franks  and  wife  to  Big- 
nell is  the  same   property  described   in   the   contract  between   Allen   J. 
Buswell  and  Charles  Ross,  and  that  that  property  was  divided  up  be- 
tween Franks  and  Bignell  as  above  set  forth  and  that  Franks  was  to 
get  the  property  described  in  the  contract  being  foreclosed  and  Bignell 
was  to  get  the  house-lot  and  six  other  lots;  that  Bignell  was  to  convey 
to  the   City  of  Grand  Haven,  Wallace   street  or  a  piece   of  33   feet  on 
Washington   street  and   183   feet   deep,   and   that  the   part  that   Bignell 
was  to  get  was  150  feet  on  Washington  street  and  running  back  264  feet 
to  Columbus  street  and  the  same  width  on  Columbus  street;    that  the 
balance  of  the  frontage  on  Washington  street  was  divided  into  lots  to 
be  conveyed  by  said  Bignell  when  they  were   sold,   and  the   property 
north   of  Columbus  avenue  was   to  be  conveyed  by   said   Bignell  when 
they  were  sold,  and  that  the  proceeds  of  those  sales  of  all  the  property 
other   than  the   property   described    in   the   contract   set   forth   in   para- 
graph one  of  the  bill  of  complaint,  and  the  house  and  lots  mentioned 
that  Bignell  took  for  the  sum  of  $2,000.00  and  the  proceeds  that  were 
paid   to   defendant   Bignell,   were   to   be   credited   on   Franks'    contract; 
that  Bignell  actually  sold  to  the  City  of  Grand  Haven  that  part  allotted 
for  De  Spelder  street  for  $400.00  in  cash  and  that  $400.00  was  mentioned 
in  the  statement  made  to  Franks  April  10,  1910,  as  set  forth  in  para- 
graph two  of  this  cross-bill;   that  Bignell  has  appropriated  to  his  own 
use  the  thirty-three  feet  that  was  allotted  for  Wallace  street;  that  Colum- 
bus street  has  not  been  conveyed  to  the  city  for  a  street  and  that  said 
Bignell  uses  the  same  for  garden  purposes  and  rents  the  same  to  various 
parties  that  the  18  lots  over  and  above  the  lots  described  in  the  con- 
tract in  paragraph  one  of  the  plaintiff's  bill  of  complaint  and  the  house 
lots  and  six  lots  Bignell  took,  leaving  eighteen  lots,  there  was  one  sold 
to  Ringleburg  for  $275.00;   one  to  Poel  for  $350.00;   one  to  Dornbos  for 
$275.00;    one   to    Verberkmoes    for    $275.00;    one   to   Van    der    Zalm    for 
$275.00;    one   to   Sluter,   which   Woody   now   owns,   for   $250.00;    one   to 


§  196  A] 


FORECLOSURE  OF  VENDOR'S  LIEN  429 


Bruneau  for  $150.00,  and  another  to  Bruneau  for  $150.00;  one  to  Koop- 
man  for  $150.00;  one  to  Koeksema  for  $250.00,  and  one  to  Bignell  for 
$250.00;  one  to  Mulder  for  $190.00;  one  to  Beekman  for  $250.00;  one  to 
Welch  for  $250.00;  one  to  Zeldenrust  for  $250.00;  one  to  Solms  for 
$200.00;  one  to  Kamhout  for  $200.00;  one  to  Fisher  for  $150.00;  which 
would  amount  to  $4,540.00,  included  De  Spelder  street,  but  not  including 
the  value  of  the  streets  appropriated  by  said  Bignell,  and  that  the  profit 
on  the  sale  of  said  lots  was  at  least  $1,000.00;  that  when  Bignell  made 
his  itemized  statement  set  forth  in  paragraph  two  of  this  cross-bill, 
including  sidewalk,  filling,  taxes,  time  and  commission,  Bignell  recog- 
nized the  contract  defendant  Franks  now  claims  under  and  which  was 
made  shortly  after  March  16,  1907,  but  that  the  statement  does  not 
state  the  true  amount  that  Bignell  got  for  the  lots  sold;  that  Bignell 
only  claims  sales  to  the  amount  of  $3,435.00,  when,  as  a  matter  of  fact, 
he  sold  the  eighteen  lots  for  $4,540.00;  that  the  fact  that  the  contract 
being  foreclosed  sets  forth  the  price  to  Franks  for  the  greenhouse  and 
lots  at  $2,800.00,  and  Bignell  on  his  statement  set  forth  Franks'  property 
at  $2,700.00;  that  those  facts  recognized  the  contract  that  Franks  and 
Bignell  made  just  prior  to  the  date  of  the  contract  being  foreclosed  and 
which  contract  they  have  always  worked  under. 

6.  That  the  amount  of  profits  over  and  above  the  estimated  price  of 
said  eighteen  lots  that  Bignell  actually  received  from  the  sale  of  said 
eighteen  lots,  amounting  to  $1,000.00,  and  the  itemized  statement  Bignell 
gave  Franks,  set  forth  in  paragraph  two  of  this  cross-bill,  Bignell  charges 
Franks  with  $375.50  for  his  time,  besides  $1,000.00  for  commission,  and 
the  interest  on  the  $6,473.63  up  to  the  present  time,  amounting  to  $510.00; 
and  the  defendant  Franks  has  been  paying  the  interest  on  the  contract 
being  foreclosed  and  Franks  claims  that  Bignell  now  owes  him  $222.87 
over  and  above  the  whole  amount  due,  set  forth  in  plaintiff's  bill  of 
complaint  to  foreclose  the  contract  mentioned  in  paragraph  one  of  the 
bill  of  complaint. 

7.  In  consideration  whereof  the  defendant  Franks  prays  the  aid  of  the 
court  in  the  premises  and  that  the  plaintiff  may,  if  he  can  show  why 
this  defendant  Franks  should  not  have  the  relief  prayed,  without  oath 
(all  answer  in  oath  being  hereby  waived),  full,  true  and  perfect  answer 
make  to  all  and  singular  the  matters  hereinbefore  stated  and  charged;  and 

(a)  That  this  defendant  Franks  may  be  decreed  to  have  fully  performed 
all  the  law  requires  of  him  in  reference  to  the  contract  herein  being 
foreclosed;  and 

(b)  That  the  plaintiff,  James  Bignell,  being  decreed  to  pay  the  said 
defendant  Franks  the  sum  of  $227.87,  the  said  amount  being  the  differ- 
ence between  what  Bignell  claims  is  due  on  said  contract  and  the  amount 
Franks  claims  that  he  is  entitled  to  have  endorsed  on  said  contract;  and 

(c)  That  the  court  decree  that  the  defendant  Franks  has  actually 
paid  the  $222.87  over  and  above  the  contract  price,  either  in  cash  or 
under  the  actual  terms  of  the  agreement  between  Bignell  and  Franks 
in  reference  to  the  division  of  all  of  the  property;  and 


430  T/HE  LAW  0F  LAND  CONTRACTS  [§  196A 

(d)   That  the  defendant  may  have  such  other  and  such  further  relief 
in  the  premises  as  shall  be  agreeable  to  equity  and  good  conscience. 

James  Franks, 
By  Lillie,  Lillie  &  Lillie, 

Attorneys  for  defendant  Franks. 
Business  Address: 
Grand  Haven,  Mich, 
(d)  Plaintiff's  Answer  to  Defendant's  Cross-Bill.— (Caption.)     Answer 
of  plaintiff  to  defendant  Franks'  cross-bill. 

Plaintiff  answers  this  cross-bill  paragraph  by  paragraph,  reserving  his 
lawful  exceptions  and  objections  thereto  hereinafter  set  forth,  as  follows: 
I.  Answering  paragraph  one,  plaintiff  says  that  Franks  was  being  fore- 
closed out  of  the  entire  property;  he  had  bought  it  for  $6,000.00  on  con- 
tract, had  paid  nothing,  interest  to  the  amount  of  $473.50  had  accrued, 
and  $6,473.63  was  due;  Mr.  Coburn  had  also  signed  his  note  for  $500.00 
which  he  had  not  paid,  in  winter  and  early  spring  of  1907,  and  wanted 
Bignell  to  furnish  the  money  to  buy  the  property  and  pay  Mrs.  Coburn, 
and  let  him  save  something  from  it. 

They  had  several  talks  about  the  terms  of  their  deal.  Bignell  admits 
he  wrote  Franks  a  letter  suggesting  several  propositions  on  which  they 
might  deal,  but  he  denies  he  wrote  or  authorized  or  ever  saw  the  letter 
claimed  by  Franks.  He  never  made  a  proposition  that  Franks  should 
have  all  the  net  profits  of  the  deal.  He  admits  after  he  wrote  the 
letter  he  did  to  Franks  and  before  Franks  deeded  to  him,  they  had  an 
agreement  how  they  would  deal,  which  was  that  Franks  should  deed 
the  entire  property  to  him,  he  would  sell  back  the  greenhouse  and 
twelve  lots  to  Franks  for  $2,800.00  with  $100.00  deduction  if  improve- 
ments were  made,  and  nothing  was  said  or  considered  that  Franks  had 
any  ether  interest  in  the  property,  and  he  made  a  pencil  memorandum 
in  writing  of  the  substance  of  the  agreement,  to  which  Franks  agreed. 
This  memorandum  and  the  contract  being  foreclosed  are  all  the  con- 
tracts made  between  them. 

Franks  afterwards  deeded  to  him  the  entire  land  and  he  raised  the 
money  and  tendered  it  to  Mrs.  Coburn  which,  after  litigation,  she  ac- 
cepted, and  deeded  the  land  to  Franks,  April  5,  1907. 

This  writing  Bignell  made  was  taken  by  him  and  Franks  to  Mr.  Soule's 
office  after  the  trouble  with  Mrs.  Coburn  was  over,  April  10,  1907,  and 
from  it  Mr.  Soule  drafted  the  contract  for  sale  of  the  greenhouse  property 
to  Franks,  which  is  being  foreclosed  in  this  suit,  and  this  contract  con- 
tains all  that  was  in  that  memorandum  contract,  and  the  addition  that 
in  case  of  foreclosure  Franks  should  have  the  right  to  harvest  the  crops 
he  had  growing.  This  was  put  in  at  Franks'  request  after  Mr.  Soule  had 
asked  them  both  if  the  contract  read  over  to  them  contained  everything 
in  regard  to  their  deal  with  the  property,  to  which  they  both  assented. 
The  deed  from  Franks  to  Bignell  containing  a  clause  that  it  conveyed 
the  Franks'  interest  under  a  contract,  and  all  that  they  should  afterwards 
acquire,  was  made  March  19,  the  deed  from  Mrs.  Coburn  to  Franks,  April 


§  196A] 


FORECLOSURE  OF  VENDOR'S  LIEN  431 


5,  and  the  contract  based  on  the  memorandum  made  by  Bignell  before 
the  deed  was  made,  was  made  April  10,  all  in  1907. 

Bignell  did  not  pay  Mrs.  Coburn  until  he  had  the  deed  from  Franks, 
and  Franks  would  not  deed  to  Bignell  until  he  had  the  contract  to  buy 
the  greenhouse  property. 

This  memorandum  made  by  Bignell  was  left  on  Mr.  Soule's  desk  as 
embodied   entirely  in  the   contract   finally   made   by   the   parties   closing 

their  deal. 

Possession  of  the  entire  property  except  the  greenhouse  part  was 
turned  over  to  Bignell  at  once  after  the  deal  was  closed,  he  paid  his 
taxes  thereon,  and  has  had  it  ever  since  except  as  he  has  sold  it. 

Bignell  denies  everything  in  paragraph  one,  except  as  embodied  in 
the  above. 

II.  Bignell  answers  paragraph  two,  viz.:  He  admits  making  and  giving 
to  Franks  the  statement  therein  set  forth,  but  denies  that  said  statement 
shows  or  was  intended  to  show  any  statement  of  account  between  him 
and  Franks  in  regard  to  their  deal,  and  he  says  said  statement  came 
to  be  made  under  circumstances,  viz.:  Sometime  in  1909,  he  thinks,  con- 
demnation proceedings  were  taken  by  the  city  to  take  a  strip  33  feet 
wide  off  the  east  side  of  the  entire  property  for  half  of  De  Spelder 
street.  He,  awning  the  property,  was  made  a  party;  he  was  anxious  to 
make  the  best  showing  he  could  of  the  cost  and  value  of  the  entire 
property  to  get  as  large  award  of  damages  as  possible,  and  for  that 
purpose  made  a  statement  used  in  the  Probate  Court  having  the  pro- 
ceedings in  charge.  He  secured  an  award  of  $400.00.  Sometime  after. 
he  thinks  it  was  when  Franks  paid  on  the  contract  to  April  10,  1910. 
Franks  asked  him  how  much  he  had  made  on  the  deal,  all  the  lots 
being  then  sold.  He  and  Franks  had  been  friendly  to  that  time  and 
no  claim  had  been  made  that  everything  was  not  settled  between  them, 
and  he  told  Franks  he  would  make  him  a  statement  and  he  copied  the 
statement  he  had  used  in  the  Probate  Court  and  gave  it  to  Franks. 
That  is  the  statement  set  forth  in  paragraph  two. 

He  says  that  after  he  bought  the  land  from  Franks  he  went  to  work 
at  once  to  put  it  into  shape  to  sell  and  did  sell  the  lots.  He  6pent 
the  better  part  of  two  summers  filling  in  front  for  the  sidewalk,  opening 
Columbus  avenue  through  the  center  and  filling  it,  to  sell  lots  fronting 
on  it,  getting  the  sidewalk  built  along  the  entire  Washington  avenue 
front  and  paying  for  it.  and  putting  in  his  time  getting  the  land  sur- 
veyed and  selling  the  lots,  and  put  the  value  of  his  work  at  but  $357.50. 
He  paid  Mrs.  Coburn  for  her  deed  to  Franks,  all  Franks  had  bought  the 
property  for  the  accrued  interest  Franks  had  not  paid.  $6,473.63,  interest 
on  his  money  was  $510.00;  he  made  other  payments  necessary  to  get 
the  lots  in  shape  to  sell  and  in  making  the  deal  and  in  care  of  the 
property  and  selling  the  lots,  $1,302.90,  making  his  investment  and  risk 
(it  was  not  agreed  or  understood  Franks  would  reimburse  him  for  loss, 
if  any),  $7,776.53.  He  charged  the  property  commission  or  profit. 
$1,000.00,  in  addition  to  his  work,  and  with  his  work,  $359.50,  makes  his 


432  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

charge  to  the  property,  not  to  Franks,  $1,359.50,  and  the  balance  struck 
in  the  statement  shows  a  shortage  of  $249.00,  which  deducted  from  his 
gross  charge  for  work  and  profits  of  $1,359.50,  leaves  him  as  payment 
for  his  risk  and  labor  but  $1,108.50.  He  says  this  amount  as  payment 
for  his  risk  and  labor  and  care  is  not  a  gross  profit  and  not  uncon- 
scionable under  all  the  circumstances. 

Franks  had  not  a  dollar  invested,  he  bought  the  entire  property  from 
Mrs.  Coburn  for  $6,000.00,  had  not  paid  the  interest  which  had  accrued 
for  $473.64.  He  secured  the  right  in  the  deal  to  buy  the  twelve  lots 
and  the  valuable  greenhouses  for  $2,700.00.  He  had  made  good  and 
paid   the   $2,700.00  down  to   $750.00  and   his   interest  to   April   10,   1918. 

He  has  sold  one  of  the  twelve  lots  with  the  greenhouse  property  for 
$1,000.00  to  defendant  Van  Doom  and  has  eleven  lots  left  of  like  situa- 
tion and  value.  He  was  bankrupt  and  would  have  been  closed  out, 
April  1,  1907,  by  Mrs.  Coburn's  notice  to  quit  if  Bignell  had  not  paid 
her  and  saved  him.  With  but  a  promoter's  equity  and  no  investment 
under  Mrs.  Coburn's  contract,  but  with  Bignell's  investment,  he  has 
acquired  the  valuable  greenhouse  property  and  twelve  lots  at  a  cost 
of  but  $2,700.00  and  interest  (and  he  has  had  the  ues  of  the  property 
eleven  years),  and  the  greenhouse  property  is  now  worth  $10,000.00  or 
more.  Bignell  has  made  but  $1,108.50  for  his  risk  and  work.  Franks 
has  made  $7,000.00  or  more  without  risk,  and  with  but  the  investment  of 
his  payments  to  Bignell  on  the  contract. 

Bignell's  equities  in  the  deal  to  have  his  little  profit  are  superior  to 
Franks'  to  take  his  profit  from  him. 

Bignell  denies  paragraph  two  except  as  embodied  in  the  above. 

III.  Answering  paragraph  three,  Bignell  admits  he  has  credited  Franks' 
$100.00  on  the  contract  being  foreclosed  for  building  new  greenhouse; 
admits  his  statement  as  to  the  several  items  in  the  statement,  again 
says  the  statement  was  not  his  account  with  Franks  but  with  his 
property  bought  from  Franks;  denies  he  offered  Franks  $100.00  "to  call 
the  deal  square"  or  had  any  talk  with  him  about  it;  says  Franks  never 
made  any  claim  for  anything  from  him  except  at  one  time  soon  after 
he  gave  Franks  the  statement,  Franks  said  to  him  he  ought  to  divide 
with  him,  that  Franks  afterwards  employed  Mr.  Fair  as  his  attorney, 
who  examined  into  his  case  and  told  Franks  in  Mr.  Burns'  presence  he 
had  no  case,  and  told  Mr.  Soule  the  same,  and  Franks  then,  April  25, 
1911,  paid  through  Mr.  Farr  the  amount  due  on  the  contract,  and  con- 
tinued all  his  payments  thereon  until  April  10,  1918,  and  never  in  any 
manner  made  any  claim  that  Bignell  owed  him  until  since  this  suit 
was  commenced.  He  admits  that  no  claim  of  Franks,  if  any,  that  Big- 
nell owed  him  has  ever  been  allowed  on  the  contract,  and  says  all  the 
payments  made  on  the  contract  were  by  checks  from  Franks  to  Bignell 
sent  by  Mr.  Soule  for  Bignell,  except  the  payment  by  Mr.  Farr,  April 
25,  1911. 


§  196A] 


FORECLOSURE  OF  VENDOR'S  LIEN  433 


Bignell  again  says  that  if  he  owed  Franks  anything  as  he  now  claims, 
he  owed  it  to  him  when  Mr.  Farr  paid  on  the  contract,  and  the  same 
has  now  become  barred  by  the  statute  of  limitations. 

IV.  Answering  paragraph  four,  Bignell  denies  the  statement  quoted 
from  his  bill  of  complaint  to  foreclose  the  contract  is  an  admission 
of  his  indebtedness  to  Franks;  he  repeats  the  same  here  as  a  state- 
ment that  Franks  made  like  claims  as  now  when  Mr.  Farr  was  his 
attorney,  which  he  abandoned  when  Farr  made  the  payment  for  him  on 
the  contract,  and  if  such  claims,  if  ever  of  any  validity,  have  become 
barred  by  the  statute. 

He  denies  Franks  has  ever  made  any  claims  of  money  due  him  from 
Bignell  as  to  stating  amounts  and  why  due  him,  and  he  has  never  known 
what  Franks  claimed  when  Mr.  Farr  was  his  attorney,  except  as  stated 

in  this  cause. 

He  admits  the  quoted  statement  from  his  bill  as  to  his  willingness  to 
convey  the  lot  sold  to  Van  Doom  to  him  and  the  balance  to  Franks  on 
payment  of  the  amount  due  him  on  the  contract.  He  is  willing  to  do 
so  now. 

He  admits  his  statement  to  do  equity  as  stated  in  his  bill  as  therein 
stated,  viz.,  that  he  would  insist  on  forfeiture  of  his  contract  with 
Franks  but  would  claim  only  that  the  court  adjudicate  his  lien  on  the 
land  for  the  amount  unpaid  thereon,  which  he  here  again  repeats,  but 
he  denies  that  such  statement  made  any  admission  of  the  outlawed  and 
untrue  claim  of  Franks  that  there  was  any  other  contract  between  them 
by  which  he  owed  Franks  any  money,  which  he  here  again  denies. 

He  denies  that  Franks  did  not  more  than  six  years  ago  abandon  and 
give  up  all  claim  against  Bignell  under  Mr.  Farr's  advice  and  go  on 
with  the  payments  on  the  contract,  which  claims  are  untrue,  and  if  true, 
are  barred  by  the  statute  of  limitations  and  cannot  now  be  asserted. 

He  denies  all  of  paragraph  four  not  embodied  in  this  answer  thereto. 

V.  Answering  paragraph  five,  he  denies  that  no  settlement  ever  was 
made  between  him  and  Franks,  and  says  that  the  contract  between 
them  being  foreclosed  in  this  suit  was  a  complete  and  final  settlement 
of  all  their  deal  concerning  the  property  deeded  to  him  by  Franks  and 
was  so  stated  and  declared  by  each  of  them  when  made,  that  it  was 
made  in  writing  signed  by  both  of  them  and  contained  all  the  deal 
remaining  between  them;  that  the  memorandum  made  previously  was 
embodied  in  it  entirely,  and  Frank's  effort  in  this  cause  to  prove  by 
parol  some  other  and  different  matter  not  contained  in  that  contract  is 
attempting  to  contradict  and  vary  the  written  agreement  contrary  to  law. 

He  again  assets  that  Franks  gave  up  and  abandoned  his  pretended 
claim  of  a  different  deal  with  Bignell  under  Mr.  Farr's  advice,  more 
than  six  years  ago  and  cannot  now  asset  it.  if  true,  which  it  is  not. 
He  denies  Franks  did  not  give  up  and  abandon  his  pretended  claim 
more  than  six  years  ago. 

He  admits  the  description  to  the  land  conveyed  him  by  Franks  is 
set  up  in  his  answer  before,  and  asserts  that  the  greenhouse  property 


434  THE  LAW  OF  LAND  CONTRACTS  [§  196A 

is  part  of  the  same,  being  the  equilavent  of  three  50  by  132  foot  lots 
fronting  on  Washington  avenue  and  ten  like  lots  fronting  on  Columbus 
avenue  extended  across  the  entire  ten  acres. 

He  admits  he  paid  Mrs.  Coburn  $6,473.63  for  a  deed  of  the  entire 
property  to  Franks  after  Franks  had  given  his  warranty  deed  to  him, 
and  says  he  afterwards  paid  out  $1,302.90,  including  interest  on  his 
money,  for  taxes,  survey,  building  sidewalks  and  the  like  in  expenses 
to  get  the  property  in  shape  to  sell  the  lots,  as  before  stated,  and  as 
set  forth  in  his  statement  of  his  account  with  the  property,  not  with 
Franks,  heretofore  referred  to. 

He  denies  it  is  any  concern  of  Franks  what  he  received  for  the  part, 
Wallace  street,  or  of  the  land  condemned  for  De  Spelder  street,  or 
any  other  part  of  the  property  sold  by  him,  for  it  was  his  property 
and  he  could  sell  it  or  otherwise  dispose  of  it  as  he  saw  fit,  and  did 
not  have  to  account  to  Franks  for  what  he  got  for  it. 

He  again  avers  that  he  invested  in  this  property  deal,  including 
interest  on  his  money,  $7,776.50  at  his  own  risk,  Franks  assumed 
none,  his  profit  including  his  work  for  two  years  in  getting  his  lots 
in  shape  to  sell  and  selling  them  was  but  $1,108.50,  as  shown  in  his 
statement  of  his  deal  with  the  property  given  to  Franks  as  shown  to 
the  court,  which  he  says  is  a  very  small  profit  to  make  for  his  risk, 
investment  and  labor  and  care. 

He  says  Franks  had  made  no  investment,  he  bought  the  property 
from  Mrs.  Coburn,  or  her  crowd,  she  holding  it  then  for  $6,000.00;  he 
had  paid  nothing,  not  even  interest,  and  owed  her  $6,473.63,  which  Big- 
nell  paid  to  save  the  entire  loss  to  Franks  under  forfeiture  proceedings 
then  pending  and  nearly  at  end.  Franks  saved  the  greenhouse  property 
and  twelve  lots  on  payment  to  Bignell  of  $2,700.00  with  long  and  liberal 
time  and  has  been  able  to  make  his  payments  and  make  good  by  Big- 
nell's  liberality.  He  now  has  a  property  worth  $10,000.00  and  has  made 
clear  over  $7,000.00.     His  profit  is  much  more  than  Bignell's. 

He  admits  he  set  off  Columbus  avenue  across  the  property  to  sell  the 
lots  along  it,  and  says  Franks  has  much  the  advantage  of  it  as  he 
has  his  nine  lots  front  upon  it,  but  denies  he  received  anything  for  it, 
except  to  sell  his  lots. 

He  denies  as  before  that  in  making  the  statement  he  in  any  manner 
recognized  Frank's  claims  under  his  parol  contract.  He  made  the 
statement  for  the  purposes  and  under  circumstances  before  stated,  and 
again  says  it  was  a  statement  of  his  account  with  the  property  and 
not  with  Franks  whose  name  is  only  mentioned  in  the  enumeration  of 
property  sold.  This  stands  at  $2800.00  with  $100.00  received,  which  was 
deducted  and  not  paid,  and  reduces  Bignell's  gross  profits  from  $1,185.50 
to  $1,008.50  only. 

He  again  denies  that  in  making  this  statement  of  his  deal  with  his 
property  he  in  any  manner  recognized  the  alleged  contract  claimed  by 
Franks,  and  he  says  if  Franks'  alleged  contract  has  any  connection 
with  the  contract  being  foreclosed  made  subsequently,  it  became  merged 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  435 

in  and  a  part  of  the  later  contract,  and  no  proof  of  it  can  be  made  as 
contradicting  the  written  instrument. 

He  denies  every  averment  of  paragraph  five  not  denied  or  explained 
above. 

VI.  Answering  paragraph  six,  he  denies  Franks  is  entitled  to  any 
credit  for  the  profits  he  has  made  on  the  sale  of  the  eighteen  lots 
mentioned,  or  from  De  Spelder  street  or  for  the  sale  of  any  other  of 
his  property,  or  for  any  other  matter  except  all  the  payments  on  the 
contract  for  which  he  has  due  credit,  reducing  the  amount  due  thereon 
from  $2,700.00  when  made  to  $250.00  and  interest,  or  $750.00  and  interest, 
April  10,  1918,  there  being  $273.06  due  September  6,  by  the  terms  of 
the  contract,  or  $791.81,  if  the  court  shall  determine  the  entire  amount 
due  by  the  forfeiture  terms  thereof. 

He  denies  the  court  should  make  any  decree  giving  Franks  credit 
for  the  $1,000.00  claimed  or  for  any  other  sum  under  the  alleged  parol 
contract  merged.  He  denies  each  and  every  other  allegation  of  para- 
graph six,  not  specifically  answered  in  the  foregoing. 

Further  answering  Franks'  cross-bill,  plaintiff  Bignell  says  by  way 
of  objection  to  the  same  in  the  nature  of  demurrer: 

(a)  That  the  pencil  memorandum  made  by  him  and  claimed  by  Franks 
to  have  been  the  contract  on  which  he  relies  for  his  defense  in  this 
suit,  and  which  was  used  by  Mr.  Soule  in  drawing  the  contract  being 
foreclosed  herein,  and  which  was  the  only  other  contract,  if  it  was  a  con- 
tract, made  between  him  and  Franks,  was  not  signed  by  either  him 
or  Franks,  is  not  alleged  in  the  cross-bill  to  have  been  signed  by  him 
as  the  party  sought  to  be  charged  therewith,  and  is  void  as  in  any 
manner  affecting  the  title  to  land. 

(b)  That  said  pencil  memorandum  was  not  made  or  intended  to  be 
a  contract  but  a  memoranudm  only  to  be  used,  as  it  was  used,  by  a 
competent  draftsman  to  make  the  actual  contract  between  them,  which 
is  the  contract  being  foreclosed  in  this  suit,  and  which  contains  all 
that  was  contained  in  said  pencil  memorandum  with  the  additional 
clause  suggested  by  Franks  of  his  right  to  remove  crops  growing,  in 
case  of  forfeiture;  that  said  pencil  memorandum  did  not  contain  any 
clause  or  provision  for  selling  the  eighteen  lots  by  Bignell  and  in  any 
way  accounting  to  Franks  for  the  proceeds,  and  no  parol  proof  can 
be  made  or  heard  of  Franks'  claim  of  the  same  being  contained  in 
the  alleged  contract,  the  pencil  memorandum  written  by  Bignell,  as 
contradicting  the  terms  of  the  written  contract;  and  that  if  such  a 
contract  was  made  it  became  merged  in  the  written  contract  after- 
wards made  by  he  parties,  and  no  proof,  parol,  or  otherwise,  can  be 
made  of  its  contents  as  affecting  the  later  contract  being  foreclosed 
in  this  suit. 

(c)  That  if  any  such  contract,  as  claimed  by  Franks,  was  made  that 
Bignell  was  to  sell  the  eighteen  lots  and  account  to  Franks  for  the 
proceeds,  which  is  denied,  the  same  is  a  trust  in  lands  and  no  parol 
proof  of  it  can  be  made. 


436  THE  LAW  OF  LAND  CONTRACTS  [§  196A 

(d)  That  if  any  such  contract  was  made,  as  claimed  by  Franks,  which 
is  denied,  and  Bignell  was  indebted  to  Franks  for  any  of  the  pro- 
ceeds of  the  sale  of  the  eighteen  lots,  he  became  so  indebted  in  1909 
or  1908,  when  he  gave  Franks  the  statement  of  what  he  had  made  on 
the  deal;  Franks  then  had  a  right  of  action  for  his  share  of  the  pro- 
ceeds going  to  him;  more  than  six  years  have  elapsed  and  the  debt 
is  barred  by  the  statute  of  limitations,  and  the  same  cannot  be  used 
as  a  set-off  to  any  part,  or  the  amount  due  him  from  Franks  admitted 
in  his  answer  to  Bignell's  foreclosure  bill. 

This  averment  is  made  especially  to  plead  the  statute  of  limitations 
to  Franks'  alleged  set-off  against  the  amount  admitted  to  be  due  Big- 
nell on  the  admitted  contract  being  foreclosed  in  this  suit. 

In  consideration  of  the  premises,  plaintiff  Bignell  prays  that  defend- 
ant Franks'  cross-bill  be  dismissed  and  he  have  decree  for  the  amount 
due  him  on  foreclosure  of  the  contract  in  this  suit  admitted  by  defend- 
ant Franks. 

Jamies  Bignell, 

Plaintiff, 
By  Chas.  E.  Soule, 

His  Attorney. 

(e)  Decree. — At  a  session  of  said  court  held  at  the  court  house  in 
the  City  of  Grand  Haven  on  the  15th  day  of  April,  1919. 

Present:   Hon.  Orien  S.  Cross,  Circuit  Judge. 

This  cause  came  on  to  be  heard  on  pleadings  and  proofs  taken  in 
open  court.  The  court  heard  the  proofs  and  after  mature  deliberation 
thereof,  filed  written  findings  March  26,  1919,  of  which  the  following 
is  a  copy: 

"The  bill  of  complaint  was  filed  in  this  cause  to  foreclose  a  land 
contract.     Issue  was  joined  and  proofs  taken  in  open  court. 

From  the  testimony  it  appears  that  defendant  Franks  had  contracted 
to  purchase  26  lots  in  the  City  of  Grand  Haven,  that  being  unable 
to  furnish  the  purchase  price  for  the  same,  all  the  lots  were  conveyed 
to  the  plaintiff  and  in  consideration  of  the  plaintiff  furnishing  the 
purchase  price,  it  was  agreed  that  the  defendant  Franks  should  have 
twelve  lots  upon  which  was  situate  a  greenhouse,  for  the  sum  of  $2,800.00, 
less  a  deduction  of  $100.00  upon  the  making  of  certain  improvements, 
and  the  plaintiff  should  have  six  lots  upon  which  was  situated  a  resi- 
dence, for  $2,000.00,  and  the  balance  of  the  lots  were  to  be  sold  and 
after  paying  the  plaintiff  the  balance  of  the  purchase  price,  the  ex- 
penses and  10  per  cent,  on  the  money  invested,  the  profits  were  to  be 
applied  in  payment  of  the  purchase  price  of  the  twelve  lots  taken  by 
defendant  Franks. 

Defendant  Franks  made  payments  from  time  to  time  until  he  con- 
sidered he  had  fully  paid  the  purchase  price,  when  this  suit  was  insti- 
ted  by  the  plaintiff.  The  plaintiff  claims  that  he  never  agreed  to 
apply  the  profits  of  the  sale  of  the  eighteen  lots  in  payment  of  the 
purchase  price  of  the  twelve  lots  purchased  by  the  defendant. 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  437 

The  proofs  show  that  the  agreement  was  as  claimed  by  the  defendant 
Franks,  and  that  after  allowing  the  plaintiff  the  balance  of  the  pur- 
chase price  due  him,  his  expenses  and  commissions,  that  the  defend- 
ant had  paid  all  of  the  purchase  price  of  the  twelve  lots  to  the  plaintiff 
except  the  sum  of  $110.00,  which  sum  the  defendant  Franks  will  be 
required  to  pay  to  the  plaintiff  within  thirty  days  from  the  signing  of 
the  decree  herein,  and  in  default  thereof  the  decree  may  provide  for 
the  foreclosure  of  the  contract  on  the  property  now  held  by  the  defendant 
Franks. 

The  plaintiff  will  recover  costs. 

A  decree  may  be  prepared  for  signature  in  accordance  with  these 
findings." 

Therefore,  on  motion  of  Charles  E.  Soule,  plaintiff's  attorney,  it  ia 
ordered,  adjudged  and  decreed  that  defendant  James  A.  Franks,  within 
thirty  days  from  the  signing  and  entry  of  this  decree  pay  to  plaintiff 
Jamies  Bignell  or  to  his  attorney  herein,  said  sum  of  one  hundred  ten 
dollars  ($110.00),  together  with  said  plaintiff's  costs  of  this  suit  to 
be  taxed,  and  interest  thereon  at  six  per  cent,  per  year  until  paid; 
and  that  in  default  of  such  payment  the  land  described  in  the  land 
contract  being  foreclosed  in  this  suit,  and  hereinafter  described,  be 
sold  by  a  commission  of  this  court  after  giving  the  notice  required  by 
law  for  like  sales  on  foreclosure  of  mortgages  to  satisfy  said  amount 
due  plaintiff  and  said  costs;  that  at  such  sale  any  party  to  this  suit 
may  become  the  purchaser;  that  the  commissioner  making  such  sale 
make  deed  to  the  purchaser  or  purchasers  thereat  and  report  to  the 
court  of  his  proceedings  thereof  as  in  other  like  sales;  that  such  sale 
be  subject  to  due  confirmation  as  other  like  sales;  that  the  purchaser 
or  purchasers  at  such  sale  after  confirmation  thereof,  be  let  into  pos- 
session by  the  writ  of  assistance  of  the  court;  and  that  by  such  sale 
and  confirmation  these  of  all  the  title  and  right  of  defendant,  James 
A.  Franks,  and  all  persons  holding  and  to  hold  under  him,  at  the  time 
of  making  the  contract  being  foreclosed  herein,  and  of  all  defend- 
ants in  this  suit,  pass  to  the  purchaser  or  purchasers  at  such  sales 
and  all  defendants  herein  be  forever  foreclosed  of  all  interest  therein. 

The  land  to  be  sold  at  such  foreclosure  sale  is  situated  in  the  City 
of  Grand  Haven  in  said  Ottawa  county,  and  is  described  in  said  land 
contract  being  foreclosed  and  in  the  pleadings  herein  substantially  as 
follows: 

"Part  of  the  northwest  quarter  of  southeast  quarter  of  southwest  quarter 
of  section  twenty-one,  town  eight  north,  range  sixteen  west,  in  Grand 
Haven  city,  commencing  on  north  line  of  Washington  avenue,  183  feet 
east  from  southwest  corner  thereof;  thence  north  to  south  line  of  Co- 
lumbus avenue  when  extended  east;  thence  east  on  said  south  line  of 
Columbus  avenue,  extended  444  feet,  thence  south  132  feet;  thence 
west  parallel  with  south  line  of  Columbus  avenue,  extended,  300  feet; 
thence  south  132  feet  to  north  line  of  Washington  avenue,  and  west 
on  said  line  to  place  of  beginning." 


438  THE  LAW  OF  LAND  CONTRACTS  [§  196A 

It  is  further  ordered,  adjudged  and  decreed  that  plaintiff  do  have  and 
recover  from  defendant,  James  A.  Franks,  his  costs  of  this  suit  to  be 
taxed,  and  that  he  have  execution  therefor,  or  that  the  same  be  recov- 
ered by  sale  of  the  land  on  foreclosure  as  above  set  forth. 

Orien  S.  Cross, 

Circuit  Judge. 
Charles  E.  Soule, 

Plaintiff's  Attorney. 
Countersigned  and  entered  by  me. 
Orrie  J.  Sluiter, 
Clerk. 

(f)  Authorities  Cited  by  Plaintiff.  Brief  for  Plaintiff.— It  is  the  con- 
tention of  the  plaintiff  that  the  contract  set  up  in  plaintiff's  bill 
of  complaint  is  the  on'v  agreement  entered  into  with  defendant, 
and  that  as  defendant  has  not  paid  the  entire  balance  due,  a  decree 
should  be  entered  allowing  the  plaintiff  the  amount  conceded  to  be  due. 
It  is  the  contention  of  defendant  that  plaintiff  was  to  sell  the  lots  and 
account  to  the  defendant  for  the  proceeds. 

1.  Parol  testimony  is  not  admissible  to  vary  the  terms  of  a  written 
contract.     Greenleaf,   par.   275. 

In  Dudgeon  v.  Haggart,  17  Mich.,  279,  the  court  said,  citing  Adair  v. 
Adair,  5  Mich.  204: 

"These  instruments  were  made  by  the  parties  at  the  same  time,  and 
related  wholly  to  the  same  subject-matter,  and  it  was  the  duty  of  the 
court,  and  not  the  jury,  to  interpret  them  and,  in  so  doing,  to  read 
and  construe  together  as  parts  of  a  single  transaction  and  not  as 
instruments  alien  in  their  origin,  object  or  subject-matter." 

"Courts  cannot  substitute  another  contract  for  the  one  they  made 
and  force  contract  relations  upon  a  party  who  had  expressly  refused  to 
enter  into  them."    Burwitz  v.  Jeffers,  103  Mich.  515. 

2.  Statute  of  Frauds. 

The  defendant's  contention  is  that  plaintiff  wrote  the  following  letter, 
and  that  it  set  up  an  agreement  by  which  defendant  is  entitled  to  cer- 
tain accounts: 

"Mr.  Franks:  Our  arrangement  is  this:  You  are  to  take  the  green- 
house and  twelve  lots,  for  $2,800.00,  with  rebate  of  $100.00  if  you  build 
a  new  greenhouse;  I  will  take  the  house  and  six  lots  for  $2,000.00; 
it  leaves  eighteen  lots  to  be  sold,  for  which  I  take  ten  per  cent,  of  my 
investment,  or  will  endorse  either  the  whole  profits  or  net  profits  on 
your  contract. 

Jamies  Bignell." 

Such  a  writing  is  void  under  the  statute  of  frauds.  It  describes  no 
land,  it  sets  forth  no  terms  of  payment,  determines  nothing  unless 
aided  by  parol  testimony,  and  the  writing  required  by  the  statute  of 
frauds  is  void  unless  complete  in  itself,  requiring  no  parol  proof.  Ebert 
v.  Culler,  165  Mich.  75;  Webster  v.  Brown,  67  Mich.  328;  Gault  v.  Star- 
mont,  51  Mich.  638. 


§  196A] 


FORECLOSURE  OF  VENDOR'S  LIEN  439 


"This  statute  has  frequently  been  before  this  court  for  construction, 
and  it  has  been  held  that  a  contract  which  is  void  under  the  statute 
of  frauds  cannot  be  used  for  any  purpose."  Raub  v.  Smith,  61  Mich. 
547,  and  cases  cited. 

Were  it  claimed  that  defendant's  interest  in  the  land  was  a  trust,  it 
would  still  come  under  the  statute  and  cannot  be  proved  by  parol.  Sher- 
wood v.  Davis,  168  Mich.  405;  Douglas  v.  Douglas,  72  Mich.  99;  Pierson 
v.  Conley,  95  Mich.  624. 

In  Kulenkamp  v.  Goff,  71  Mich.  679,  the  court  said: 

"If  this  defense  can  be  allowed,  then,  as  beforesaid,  in  speaking 
of  the  claim  of  fraud,  every  promissory  note,  as  between  the  parties 
thereto,  and  every  contract  in  writing,  is  open  to  parol  proof  that  it 
does  not  correctly  represent  the  agreement  made,  and  oral  evidence 
may  be  given  to  contradict,  alter  or  vary  such  written  agreement.  " 
3.  Statute  of  Limitations. 

Defendant  testified  that  all  the  lots  were  sold  by  April  10,  1910.  He 
has  never  spoken  to  plaintiff  since  that  date  and  made  no  claim  for 
the  money,  and  no  credit  was  given  to  him  on  the  contract  for  the 
sale  of  these  lots.  The  bill  was  filed  to  foreclose  this  contract  May 
21,  1918,  more  than  eight  years  after  defendant  says  plaintiff  owed 
him  $1,000.00. 

No  claim  is  made  that  this  alleged  "other"  contract  was  under  seal, 
and  anything  possibly  due  on  it  is  barred  six  years  after  due. 
In  Goodsole  v.  Jefferey,  202  Mich.  201,  it  was  held: 

"Where  the  dealings  of  parties  relate  entirely  to  and  are  covered  by 
a  special  contract  for  the  payment  of  money  at  certain  periods  agreed 
upon,  there  is  no  open  and  mutual  account,  so  as  to  prevent  the  remedy 
thereon  being  barred  by  the  statute  of  limitations." 

(g)  Authorities  Cited  by  Defendants— Brief  for  Defendants.— The  de- 
fendants review  the  testimony  in  the  record  and  claim  that  as  the  trial 
court  found  the  position  taken  by  defendant  Franks  to  be  true  and 
the  circuit  judge  having  seen  the  witnesses  and  heard  them  testify,  this 
court  is  bound  to  bring  to  the  support  of  the  decision  of  the  trial  judge 
all  reasonable  presumptions  which  arrive  from  his  superior  opportunity 
to  determine  the  credibility  of  witnesses.     Hintz  v.  R.  R.  Co.,  132  Mich. 

305. 

NELSON  v.  BREITENWISCHER,  194  Mich.  30— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Exhibits  "A"  and  "B,"  the  Contracts  Relied  Upon. 

(d)  Motion  of  Defendant  to  Dismiss. 

(e)  Affidavit  to  Motion  to  Dismiss. 

(f)  Order  Dismissing  Bill. 

(The  Brief  of  Plaintiff  and  Defendant  Has  Not  Been  Included  for  the 
reason  That  the  Appeal  Has  to  Do  with  the  Question  of  the  Mortgage 
Tax  Law  Only.) 


440  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

NELSON  v.  BREITENWISCHER,  194  Mich.  30— 

(a)  Brief  Statement  of  Facts. — Bill  of  complaint  was  filed  to  foreclose 
a  land  contract  for  failure  to  abide  by  the  terms  of  the  contract.  The 
defendant  made  a  motion  to  dismiss  on  the  ground  that  plaintiff  failed 
to  comply  with  the  statute  requiring  a  tax  to  be  paid  on  all  land  con- 
tracts. From  an  order  denying  the  motion  to  dismiss,  plaintiff  appeals, 
which  was  reversed  on  appeal, 
(b)  Bill  of  Complaint— 

STATE  OF  MICHIGAN 
In  the  Circuit  Court  for  the  County  of  Montcalm, 
In  Chancery. 
Clinton  Nelson,  \ 

Plaintiff,  j 

(no 

Louis  F.   Breitenwischer  and  / 

Fannie  H.  Breitenwischer,     V 
Defendants.  J 

Your  orator,  Clinton  Nelson,  of  the  City  of  Lama,  County  of  Gratiot, 
and   State  of  Michigan,  respectfully  shows  unto  this   Honorable   Court: 

1st.  That  he  is  the  owner  in  fee  simple  of  the  following  described 
lands,  to-wit,  the  east  one-half  (£)  of  the  east  one-half  (£)  of  section 
twenty-two  (22),  and  the  west  one-half  (I)  of  section  twenty-three  (23), 
all  in  the  Township  of  Home,  being  town  twelve  (12)  north,  of  range 
six  (6)  west,  of  the  value  of  twenty  thousand  dollars  ($20,000)  and 
upwards. 

2nd.  That  your  orator  obtained  title  to  said  lands  by  virtue  of  a  cer- 
tain deed  of  conveyance  made  on  the  12th  day  of  November,  A.  D.  1915, 
by  James  C.  Walsh  and  Inez  V.  Walsh,  husband  and  wife,  of  Grand 
Ledge,  Michigan,  which  deed  was  duly  recorded  in  the  office  of  the 
Register  of  Deeds  for  the  County  of  Montcalm,  on  the  10th  day  of  De- 
cember, A.  D.  1915,  in  liber  163  of  deeds  on  page  49,  said  deed  being 
made  subject  to  a  certain  real  estate  mortgage  covering  said  lands 
held  and  owned  by  the  Northwestern  Mutual  Life  Insurance  Company 
in  the  sum  of  nine  thousand  five  hundred  dollars  ($9,500),  and  also 
subject  to  a  certain  land  contract  executed  on  the  15th  day  of  June, 
A.  D.  1915,  by  James  C.  Walsh  and  Inez  V.  Walsh,  husband  and  wife, 
to  Louis  F.  Breitenwischer  and  Fannie  H.  Breitenwischer,  of  Lansing. 
Michigan. 

3rd.  That  the  said  James  C.  Walsh  and  Inez  V.  Walsh,  husband  and 
wife,  at  the  time  of  the  execution  and  delivery  of  said  deed  were  the 
owners  in  fee  simple  thereof,  they  having  procured  title  through  the 
legal  grantors  and  grantees  in  succession. 

4th.  That  on  the  15th  day  of  June,  A.  D.  1915,  while  the  said  James 
C.  Walsh  and  Inez  V.  Walsh,  were  the  owners  of  said  lands  in  fee  simple 
they  entered  into  a  certain  land  contract  with  Louis  F.  Breitenwischer 
and  Fannie  H.  Breitenwischer,  defendants  herein,  of  the  City  of  Lansing, 
County  of  Ingham  and  State  of  Michigan,  in  which  they,  the  said  James 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  441 

C.  Walsh  and  Inez  V.  Walsh,  agreed  to  sell  to,  and  the  said  Louis  F 
Breitenwischer  and  Fannie  H.  Breitenwischer  agreed  to  buy  said  lands 
for  the  sum  of  thirty-five  thousand  dollars  ($35,000)  and  pay  for  the  same 
as  follows:  The  sum  of  eighteen  thousand  three  hundred  dollars  ($18,300) 
on  the  signing  and  delivery  of  said  contract  and  the  balance  as  follows: 
Two  thousand  dollars  ($2,000)  thirty  days  from  date  of  said  contract 
two  thousand  dollars  ($2,000)  sixty  days  from  date  of  said  contract, 
with  interest  at  six  per  cent,  per  annum  subject  to  a  mortgage  of  nine 
thousand  five  hundred  dollars  ($9,500)  then  held  and  owned  by  the 
North-Western  Mutual  Life  Insurance  Company,  covering  said  lands.  A 
copy  of  said  contract  being  hereunto  subjoined  and  marked   Exhibit  A. 

5th.  That  on  the  12th  day  of  November,  A.  D.  1915,  the  said  James  C. 
Walsh  and  Inez  V.  Walsh,  husband  and  wife,  assigned  and  transferred 
to  your  orator  said  contract.  A  copy  of  said  assignment  being  here- 
unto subjoined  and  marked  Exhibit  B. 

6th.  That  in  and  by  the  terms  of  said  contract  it  was  expressly  stipu- 
lated and  agreed  on  the  part  of  Louis  F.  Breitenwischer  and  Fannie  H. 
Breitenwischer. 

(a)  To  purchase  said  lands  and  to  pay  therefor  the  said  several  sums 
hereinabove   mentioned. 

(b)  To  keep  the  buildings  now  on,  or  that  may  be  placed  on  said 
premises,  insured  in  the  name  of  and  in  the  manner  and  amount  and  by 
insurers  approved  by  the  said  James  C.  Walsh  and  Inez  V.  Walsh. 

(c)  To  enter  said  premises  for  taxation  in  their  own  name  and  to 
pay  all  taxes  and  assessments,  ordinary  and  extraordinary,  that  may 
for  any  purpose  be  levied  or  assessed  on  said  premises,  and, 

(d)  Not  to  commit  or  suffer  any  other  person  to  commit  any  waste  or 
damage  to  said  premises  or  the  appurtenances,  and  that  in  the  event 
they  fail  to  keep  said  buildings  insured  and  to  pay  the  taxes  against  said 
premises,  the  said  James  C.  Walsh  and  Inez  V.  Walsh  were  authorized 
and  permitted  to  cause  said  insurance  to  be  made  and  taxes  to  be  paid 
and  the  amount  thus  expended  to  be  and  remain  a  lien  on  said  premises 
and  be  added  to  the  amount  then  unpaid  thereon  and  bear  interest  at 
six  per  cent,  per  annum. 

(e)  That  all  buildings  and  improvements  to  remain  on  said  premises 
as  security  for  the  performance  of  said  contract. 

(f)  To  take  possession  of  said  premises  and  remain  thereon  as  long 
as  they  shall  perform  the  covenants  and  agreements  in  said  contract 
mentioned  on  their  part  to  be  performed,  and  no  longer. 

(g)  That  in  case  they  violate  or  neglect  to  fulfill  any  of  said  covenants 
or  agreement  they  shall  forfeit  all  right  or  claim  under  said  contract 
and  be  liable  to  be  removed  from  said  premises  in  the  same  manner 
as  is  provided  by  law  for  the  removal  of  a  tenant  that  holds  over  prem- 
ises contrary  to  the  terms  of  his  lease,  and  notice  to  quit  and  for- 
feiture were  expressly  waived. 

(h)  It  was  also  agreed  on  the  part  of  the  said  James  C.  Walsh  and 
Inez  V.  Walsh  that  in  the  event  the  said  Louis  F.  Breitenwischer  and 


442  THE  LAW  0P  LAND  CONTRACTS  [§  196A 

Fannie  H.  Breitenwischer  shall  upon  the  faithful  performance  of  all  of 
the  covenants  and  agreements  covenanted  to  be  done  and  performed  by 
the  said  Louis  F.  Breitenwischer  and  Fannie  H.  Breitenwischer,  then 
they  should  execute  and  deliver  a  good  and  sufficient  warranty  deed  of 
said  premises  thereby  conveying  the  title  thereof  free  and  clear  of  all 
encumbrances,  except  taxes  after  the  date  of  said  contract  and  any 
claims  and  liens  thereon  subsequent  thereto. 

(i)  It  was  further  expressly  agreed  by  and  under  the  terms  of  said 
contract,  that  in  case  of  the  removal  of  said  Louis  F.  Breitenwischer 
and  Fannie  H.  Breitenwischer  by  reason  of  any  forfeiture  or  failure  on 
their  part  to  carry  out  the  terms,  covenants  and  agreements  set  forth 
in  said  contract,  then  said  James  C.  Walsh  and  Inez  V.  Walsh  were  duly 
authorized  to  take  possession  of  the  lands  hereinbefore  described,  and 
in  said  contract  described,  and  retain  any  and  all  improvements  that 
may  have  been  made  as  well  as  any  payments  that  may  have  been 
made  as  stipulated  damages  for  nonperformance  of  contract,  and  that 
the  above  named  Louis  F.  Breitenwischer  and  Fannie  H.  Breitenwischer 
shall  lose  and  be  debarred  from  all  rights,  remedies  and  actions,  both  at 
law  and  in  equity,  upon  or  under  said  contract. 

7th.  Your  orator  further  shows  unto  the  court,  that  under  and  by 
virtue  of  the  stipulations  set  forth  and  described  in  said  contract,  there 
is  now  justly  due  and  payable  to  your  orator,  as  the  grantee  of  James 
C.  Walsh  and  Inez  V.  Walsh  and  assignee  of  said  contract,  the  just  and 
full  sum  of  seven  thousand  two  hundred  dollars  ($7,200)  of  principal 
with  interest  thereon  at  six  per  cent,  from  the  15th  day  of  June,  A.  D. 
1915. 

8th.  That  your  orator  under  and  by  virtue  of  the  terms,  covenants 
and  conditions  in  said  contract  set  forth  and  described  hereby  elects  to 
declare  said  contract  forfeited  and  your  orator  entitled  to  the  possession 

thereof. 

9th.  In  consideration  of  the  premises  and  the  statute  in  such  case  made 
and  provided  your  orator  prays, 

1st.  Tbat  the  said  defendants,  and  each  of  them,  be  required  to  true 
and  perfect  answer  make  to  this  your  orator's  bill  of  complaint,  but 
not  on  oath,  their  answer  on  oath  being  hereby  expressly  waived,  and, 

2nd.  That  your  orator  be  granted  a  decree  of  foreclosure  of  said  con- 
tract by  reason  of  the  nonperformance  on  the  part  of  the  defendants 
herein,  and, 

3rd.  That  your  Orator  be  placed  in  possession  of  said  premises  pur- 
suant to  the  statute  in  such  case  made  and  provided,  and, 

4th.  That  your  orator  have  such  other,  further  or  different  relief  in 
the  premises  as  shall  be  agreeable  to  equity  and  good  conscience.  And 
your  orator  will  ever  pray,  etc.  Clinton  Nelson. 

L.  C.  Palmer, 

Solicitor  for  Complainant, 
Business  Address: 

Stanton,  Michigan. 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  443 

State  of  Michigan,  I 

88 

County  of  Gratiot.   \ 

On  this  14th  day  of  December,  A.  D.  1915,  personally  came  before  me 
a  notary  public  in  and  for  said  county,  Clinton  Nelson,  who,  being  by 
me  duly  sworn,  deposes  and  says,  he  has  read  the  foregoing  bill  of  com- 
plaint by  him  subscribed  and  knows  the  contents  thereof,  and  that  the 
same  is  true,  except  as  to  such  matters  as  are  therein  stated  to  be  on 
information  and  belief,  and  as  to  such  matters  he  believes  it  to  be  true. 

Philip  W.  Creaser, 

Notary  Public 

My  commission  expires  March  16,  1916. 

(c)  Exhibits  "A"  and  "B,"  the  Contracts  Relied  Upon.— (Exhibit  A)  — 
This  Contract,  made  the  fifteenth  day  of  June,  A.  D.  1915,  between 
James  C.  Walsh  and  Inez  V.  Walsh,  of  Grand  Ledge,  Eaton  County, 
Michigan,  herein  called  first  party,  and  Louis  F.  Breitenwischer  and 
Fannie  H.  Breitenwischer,  of  Lansing,  Ingham  County,  Michigan,  herein 
called  second  party. 

Witnesseth,  as  follows: 

1.  Said  first  party,  in  consideration  of  the  sum  of  thirty-five  thousand 
and  no/100  dollars  to  be  paid  by  second  party  to  first  party,  and  of  the 
covenants  to  be  performed  by  second  party,  as  hereinafter  expressed, 
hereby  agrees  to  sell  to  second  party,  all  that  certain  piece  or  parcel 
of  land  situate  in  the  Township  of  Home,  in  the  County  of  Montcalm 
and  State  of  Michigan,  described  as  follows,  viz.: 

The  east  one-half  (%)  of  the  east  one-half  (I)  of  section  twenty-two  (22), 
and  the  west  one-half  (J)  of  section  twenty-three  (23)  in  town  twelve 
(12)  north,  range  six  (6)  west,  Montcalm  County,  Michigan. 

It  is  understood  by  second  party  that  there  are  three  fields  of  rye  to 
be  harvested  on  the  above  described  farm,  of  which  he  is  to  receive 
one-half  of  grain  delivered  at  market,  said  second  party  to  pay  one-half 
of  threshing  bill  and  one-half  of  twine.  Also  one  field  of  rye  second  party 
is  to  receive  one-third  of  grain  delivered  at  market  without  expense 
to  him. 

2.  Said  second  party,  in  consideration  of  the  covenants  herein  made 
by  first  party,  agrees  to  purchase  of  first  party,  the  above  described 
premises,  and  to  pay  therefor  to  first  party,  or  their  legal  representa- 
tives, at  Grand  Ledge,  Mich.,  the  sum  of  thirty-five  thousand  and  no/100 
dollars  In  manner  as  follows,  viz.:  Eighteen  thousand  three  hundred 
and  no/100  dollars  on  the  signing  and  delivery  of  this  contract  and  the 
balance  of  sixteen  thousand  seven  hundred  ($16,700)  dollars  to  be  paid 
as  follows:  Two  thousand  ($2,000)  dollars  thirty  days  from  date;  and 
a  further  payment  of  two  thousand  ($2,000)  dollars  sixty  days  from  date; 
and  an  additional  payment  of  thirty-two  hundred  ($3200.00)  dollars  ninety 
days  from  date,  when  the  first  party  agrees  to  deed  to  second  party 
the  above  described  property  subject  to  a  real  estate  mortgage  of  ninety- 
five  ($9500.00)  dollars  together  with  interest  on  the  whole  sum  that 
shall  be  from  time  to  time  unpaid,  at  the  rate  of  six  per  cent,  per  annum, 


444  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

to  be  computed  from  date  hereof,  and  to  be  paid  with  principal.  Prin- 
cipal or  interest  not  paid  when  due  shall  bear  interest  until  paid,  at  six 
per  cent,  per  annum. 

3.  Said  second  party  shall  keep  all  buildings  now  on,  or  that  may 
hereafter  be  placed  on  said  premises,  insured  in  the  name  of,  and  in 
manner  and  amount  and  by  insurers  approved  by,  first  party,  and  leave 
the  policy  with  first  party,  and  in  case  of  loss,  the  insurance,  unless  by 
mutual  agreement  used  to  repair  or  rebuild,  shall  be  paid  to  first  party 
and  be  endorsed  on  this  contract  to  the  extent  of  the  amount  unpaid 
thereon,  and  the  balance,  if  any,  shall  belong  and  be  paid  to  second  party. 

4.  Said  second  party  shall  enter  said  premises  for  taxation  in  their 
name  and  shall  well  and  faithfully  pay  when  due,  all  taxes  and  assess- 
ments, ordinary  and  extraordinary,  that  may  for  any  purpose  be  levied 
or  assessed  on  said  premises,  Dec,  1915,  and  shall  not  commit  or  suffer 
any  other  person  to  commit  any  waste  or  damage  to  said  premises  or 
the  appurtenances.  Should  second  party  fail  to  pay  any  tax  or  assess- 
ment when  due,  or  to  keep  said  buildings  insured,  first  party  may  pay 
the  same  and  have  the  buildings  insured,  and  the  amounts  thus  expended 
shall  be  a  lien  on  said  premises,  be  added  to  the  amount  then  unpaid 
hereon,  be  due  at  once,  and  bear  interest  until  paid,  at  six  per  cent,  per 
annum. 

5.  Said  first  party  further  agrees  that  upon  the  full  performance  by 
second  party  of  all  covenants  and  agreements  by  second  party  to  be 
performed,  and  upon  the  payment  to  first  party  of  the  several  sums 
of  money  above  mentioned,  in  time  and  manner  and  at  the  place  men- 
tioned, that  thereupon  first  party  will  execute  and  deliver  to  second 
party  a  good  and  sufficient  warranty  deed,  and  thereby  convey  to 
second  party  the  premises  above  described  free  and  clear  of  all  encum- 
brance except  taxes  after  date  hereof,  and  claims  and  liens  thereon 
due  to  any  act  or  neglect  of  second  party. 

6.  All  buildings  and  improvements  now  on,  or  that  shall  be  placed  or 
made  on  said  premises,  shall  remain  thereon  as  security  for  the  per- 
formance by  second  party  of  this  contract,  and  should  default  be  made, 
and  said  contract  be  forfeited,  said  buildings  and  improvements  and  all 
payments  made  on  said  contract  shall  be  forfeited  to  first  party  as 
stipulated  damages  for  non-performance  of  this  contract,  or  first  party 
may  at  their  option  declare  all  sums  unpaid  immediately  due  and  payable 
and  enforce  the  collection  thereof  at  law  and  make  conveyance  as 
aforesaid. 

7.  Said  second  party  shall  not  assign  or  transfer  this  contract,  or  lease 
or  sublet  said  premises,  or  the  buildings  thereon,  or  any  part  thereof, 
or  add  to  or  change  said  buildings  without  the  previous  written  assent 
of  first  party  thereto  endorsed  hereon. 

8.  It  is  further  mutually  agreed  that  second  party  may  take  posses- 
sion of  said  premises  at  once  and  remain  thereon  as  long  as  they  shall 
perform  all  the  covenants  and  agreements  herein  mentioned  on  their 
part  to  be  performed,  and  no  longer;  and  that  if  they  shall  at  any  time 


§  196A]  FORECLOSURE  OF  VENDOR'S  LIEN  445 

hereafter,  violate  or  neglect  to  fulfill  any  of  said  covenants  or  agreements 
they  shall  forfeit  all  right  or  claim  under  this  contract,  and  be  liable 
to  be  removed  from  said  premises  in  the  same  manner  as  is  provided 
by  law  for  the  removal  of  a  tenant  that  holds  over  premises  contrary 
to  the  terms  of  his  lease,  and  notice  to  quit  and  of  forfeiture  are  each 
hereby  waived.  And  it  shall  be  lawful  for  first  party  at  any  time  after 
such  default  to  sell  and  convey  said  premises,  or  any  part  thereof,  to 
any  other  person  without  becoming  liable  to  refund  any  part  of  the 
money  received  on  this  contract,  or  for  any  damages  on  account  of 
such  sale.  And  it  is  hereby  expressly  understood  and  agreed  that  time 
shall  be  deemed  as  of  the  very  essence  of  this  contract,  and  that  unless 
the  same  shall,  in  all  respects,  be  complied  with  by  second  party  at 
the  respective  times,  and  in  the  manner  above  limited  and  specified,  that 
second  party  shall  lose  and  be  debarred  from  all  rights,  remedies  and 
actions,  both  at  law  and  in  equity,  upon  or  under  this  contract. 

Possession  of  this  farm  is  to  be  given  by  first  party  subject  to  the 
rights  of  W.  R.  Roch  &  Co.,  of  Hart,  Mich.,  said  lease  expires  March 
1st,  1916. 

In  witness  whereof,   the   said   parties  have   hereunto   set  their  hands 
and  seals  the  day  and  year  first  above  written. 
(In  duplicate.) 

James  C.  Walsh  (L.  S.) 

Inez   V.  Walsh  (L.  S.) 

Louis  F.  Breitenwischer  (L.  S.) 

Fannie   H.   Breitenwischer      (L.  S.) 

Signed,  sealed  and  delivered  in  the  presence  of  Leo.  L.  Wood,  D.  M. 
Krantz. 
County  of  Ingham,  l 

r  SS 

State  of  Michigan,  \      ' 

On  this  18th  day  of  June  in  the  year  one  thousand  nine  hundred  and 
fifteen  before  me,  the  subscriber  a  notary  public  in  and  for  said  county, 
personally  appeared  James  C.  Walsh,  Inez  V.  Walsh,  Louis  F.  Breiten 
wischer  and  Fannie  H.  Breitenwischer  to  me  known  to  be  the  same  per- 
sons described  in,  and  who  executed  the  within  instrument  as  vendor, 
who  each  acknowledged  the  same  to  be  their  free  act  and  deed. 

Moses  Krantz, 
Notary  Public,  Ingham  County,  Mich. 

My  commission  expires  May  9th,  1916. 

(Exhibit  B)  — 

Know  all  men  by  these  presents,  that  we,  James  C.  Walsh  and  Inez 
V.  Walsh,  husband  and  wife,  of  Grand  Ledge,  Michigan,  as  parties  of 
the  first  part  and  in  consideration  of  the  sum  of  one  dollar  and  other 
considerations,  not  herein  stated,  by  Clinton  Nelson  of  Alma,  Michigan,  as 
party  of  the  second  part,  the  receipt  of  which  is  hereby  acknowledged, 
have  sold,  assigned,  and  transferred  and  do  by  these  presents  sell,  assign, 
transfer  and  set  over  to  the  party  of  the  second  part,  all  our  right 
title  and  interest  in  and  to  a  certain  land  contract  dated  the  5th  day  of 


446  THE  LAW  0F  LAND  CONTRACTS  [§  196A 

June,  A.  D.  1915,  made  by  the  above  named  James  C.  Walsh  and  Inez  V. 
Walsh,  to  Louis  F.  Breitenwischer  and  Fannie  H.  Breitenwischer  of  Lan- 
sing, Michigan,  and  hereto  attached  to  said  assignment. 

In  witness  whereof  we  have  hereunto  set  our  hands  and  seals  this  12th 
day  of  November,  A.  D.  1915. 

James   C.   Walsh, 
Inez  V.  Walsh. 
In  presence  of  C.  F.  Closson,  Harry  H.  Partlow. 
State  of  Michigan,  | 

r  SS 

County  of  Eaton,      \ 

On  this  12th  day  of  November,  A.  D.  1915,  personally  appeared  before 
me,  a  notary  public  in  and  for  said  county,  James  C.  Walsh  and  Inez  V. 
Walsh,  husband  and  wife,  who  each  acknowledged  the  same  to  be  their 

free  act  and  deed. 

Harry  H.  Partlow, 

Notary  Public,  Eaton  County 

My  commission  expires  Aug.  1st,  1918. 

(d)   Motion  to  Dismiss.— (Caption). 

Now  comes  the  above  named  defendants,  Louis  F.  Breitenwischer  and 
Fannie  H.  Breitenwischer,  and  moves  the  court  now  here  for  an  order 
that  the  bill  of  complaint  heretofore  filed  in  this  court  in  this  cause  be 
dismissed,  and  that  this  cause  be  dismissed  with  costs  to  the  said  defend- 
ants, for  the  following  reasons: 

1.  Because  it  does  not  appear  by  said  bill  of  complaint  filed  in  said 
cause  that  the  tax  as  provided  for  in  Act  No.  91  of  the  Public  Acts  of  1911 
has  been  paid  as  in  said  act  provided. 

2.  Because  it  does  not  appear  by  the  copy  of  said  contract  as  sub- 
joined to  said  bill  of  complaint  and  marked  Exhibit  "A,"  that  the  special 
tax  as  provided  for  in  Act  No.  91  of  the  Public  Acts  of  1911  of  the  State 
of  Michigan,  has  been  paid. 

3.  Because  it  does  not  appear  by  said  bill  of  complaint  that  the  county 
treasurer  for  the  County  of  Montcalm,  State  of  Michigan,  has  certified 
on  said  land  contract  the  amount  secured  thereby  and  the  amount  of 
tax  received  by  him  as  is  provided  by  Act  No.  91  of  the  Public  Acts  of 
1911  of  the  State  of  Michigan. 

4.  Because  it  does  not  appear  by  a  copy  of  said  land  contract  subjoined 
to  said  bill  of  complaint  marked  Exhibit  "A"  that  such  certificate  certify 
ing  the  amount  secured  by  said  contract  and  the  amount  of  taxes  received 
by  said  county  treasurer  for  said  county  has  been  certified  on  said 
land  contract  by  said  county  treasurer  as  is  provided  by  Act  No.  91  of 
the  Public  Acts  of  1911,  State  of  Michigan. 

5.  Because  by  the  provisions  of  section  8  of  Act  No.  91  of  the  Public 
Acts  of  1911  of  the  State  of  Michigan,  it  is  provided  that  no  mortgage 
or  land  contract  which  is  subject  to  the  tax  imposed  by  said  act  shall 
be  released,  inforced,  discharged,  or  recorded,  or  received  in  evidence 
in  any  action  of  proceeding  in  law  or  equity  until  the  tax  imposed  thereon 
by  said  act  shall  be  paid  as  in  said  act  provided. 


§  196A)  FORECLOSURE  OF  VENDOR'S  LIEN  447 

6.  Because  said  bill  of  complaint  does  not  show  that  said  tax  has  been 
paid. 

7.  Because  said  land  contract  subjoined  to  said  bill  of  complaint  and 
marked  Exhibit  "A"  does  not  show  that  said  tax  has  been  paid  as  in 
said  act  provided. 

8.  Because  said  tax  has  not  been  paid. 

This  motion  is  made  in  accordance  with  section  4  of  chapter  14  of 
Public  Act  314  of  the  Public  Acts  of  1915  of  State  of  Michigan,  known 
as  the  Judicature  Act  and  it  is  intended  to  raise  all  questions  properly 
raised  thereunder,  and  also  all  questions  as  might  heretofore  be  raised 
by  demurrer. 

This  motion  is  founded  on  the  facts  as  herein  set  forth  and  on  the 
records  and  files  in  this  cause. 

Dated  this  5th  day  of  February,  A.  D.  1916. 

Seymour  H.  Person, 

Attorney  for  Defendants, 
(e)  Affidavit.— (Caption.) 

County  of  Montcalm,  ss.: 

F.  W.  Bailey,  being  first  duly  sworn,  deposes  and  says  that  he  is 
Treasurer  of  Montcalm  County,  and  as  such  is  in  charge  of  the  books  and 
records  of  said  offices;  that  he  has,  as  of  March  6th,  1916,  searched  the 
records  in  such  office  to  see  if  the  tax  has  been  paid  as  provided  by  Act 
No.  91  of  the  Public  Acts  of  1911  of  the  State  of  Michigan,  on  a  cer- 
tain land  contract  dated  June  15,  1915,  between  James  C.  Walsh  and 
Inez  Walsh  of  Grand  Ledge,  Michigan,  as.first  party,  and  Louis  F 
Breitenwischer  and  Fannie  H.  Breitenwischer  of  Lansing,  Michigan,  con- 
sideration $35,000,  and  covering  the  east  one-half  (h)  of  east  one-half 
(I)  section  22,  and  west  one-half  of  section  23,  in  town  12  north,  range 
six  (6)  west,  Montcalm  County,  Michigan,  and  that  he  finds  from  such 
records  that  said  tax  has  not  been  paid. 

F.  W.  Bailey. 

Subscribed  and  sworn  to  before  me,  a  notary  public  in  and  for  said 
county,  on  the  6th  day  of  March,  A.  D.  1916. 

Agnes  M.  Disbrow. 

Commission  expires  Oct.  29,  1919. 

(h)  Order. —  (Caption.)  At  a  session  of  said  court  held  at  the  court 
house  in  the  City  of  Stanton  on  Saturday,  the  15th  day  of  April,  A.  D. 
1916. 

Present:  the  Hon.  Frank  D.  M.  Davis,  Circuit  Judge. 

The  motion  of  defendants,  praying  that  the  bill  of  complaint  filed  and 
served  in  this  cause  be  dismissed,  having  come  on  to  be  heard. 

On  reading  the  bill  of  complaint,  the  motion  and  listening  to  argu- 
ments of  counsel  made  in  open  court,  and  being  fully  advised  in  the 
premises,  it  appears  to  court  that  the  motion  ought  to  be  denied. 

On  motion  of  L.  C.  Palmer,  attorney  for  plaintiff,  it  is  ordered  and 
adjudged  that  the  motion  of  defendants  be  and  the  same  is  hereby 
denied  and  dismissed. 


448  THE  LAW  OF  LAND  CONTRACTS  [§  196A 

It  is  further  ordered  and  adjudged,  that  in  the  defendants  have  fifteen 
days  from  date  of  service  of  a  copy  of  this  order  in  which  to  file  and 
serve  their  answers  to  plaintiff's  bill  of  complaint. 

Frank  D.  M.  Davis 

Circuit  Judge. 

Countersigned: 
Alfred  L.  Stearn, 
Clerk. 
L.  C.  Palmer. 

Attorney  for  Plaintiff, 
Business  Address: 
Stanton,  Michigan. 
The   brief  of  plaintiff  and   defendant  has   not  been   included   for  the 
reason  that  the   appeal  has   to   do   with   the   question   of  the   mortgage 

tax  law  only. 

The  law  of  1855  as  to  maintenance  of  bridges,  was  superseded  and 
repealed  by  the  passage  of  the  Revision  Act  of  1909,  and  its  technical 
repeal  in  1915  was  a  mere  formality;  the  act  of  1909  is  still  in  force 
under  which  we  claim  relief. 

"Where  a  subsequent  statute  covers  the  whole  ground  occupied  by  an 
earlier  statute,  it  repeals  by  implication  the  former  statute,  though 
there  be  no  repugnance."    Shannon  v.  People,  5  Mich.  85. 


CHAPTER  XII 

REFORMATION  OF  LAND  CONTRACTS 

PLEADING  AND  PRACTICE 

LATE  MICHIGAN  CASES 

0 

§  197.  Reformation  of  Land  Contracts. 
§  198.  Illustrative  Michigan  Decisions. 
§  199.  Mistakes  of  Law. 
§  200.  Evidence. 

§  201.  Bill  of  Complaint  to  Reform  a  Land  Contract — Form. 
§  202.  Decree  Reforming  Land  Contract — Form. 

§  203.  Pleadings  and  Briefs  of  Counsel  Used  in  Late  Michigan  Cases  In 
volving  the  Reformation  of  Instruments. 

§  197.  Reformation  of  Land  Contracts. — Whenever  a  con- 
tract has  been  drafted  with  the  intention  of  carrying  into 
execution  an  agreement  previously  made,  but  which  by  a  mis- 
take of  the  draftsman  or  scrivener,  either  as  to  law  or  fact, 
does  not  fulfill  that  intention,  there  is  ground  to  correct  the 
mistake  by  reforming  the  instrument  and  the  question  as  to 
whether  or  not  such  a  mistake  has  been  made  is  a  subject  of 
inquiry  open  to  parol  testimony.1 

The  reasons  requiring  a  reformation  are  reduceable  to  two 
general  classes: 

1st:  Cases  where  the  contract,  by  its  terms,  includes  subject 
matter  which  was  not  intended  by  the  parties  to  come  within 
its  operation. 

2nd:  Those  contracts,  wherein  by  means  of  mistake,  sur- 
prise or  fraud  some  part  of  the  subject  matter  intended  to  be 
included  within  the  contract  has  been  omitted. 

In  the  first  case,  parol  evidence  is  admissible  to  prove  that 
the  contract  contains  the  subject  matter.  In  the  other  case, 
parol  evidence  is  admissible  to  prove  that  it  does  not  contain 
all  of  the  subject  matter.2 

§  198.  Illustrative    Michigan    Decisions  —  Reformation    of 

1.  34  Cyc.  p.  910;  LaBlanch  v.  Johnson,  214  Mich.  578;  Murussa  v 
Perron,    209    Mich.    239;     Clark    v.      Temerowski,   204    Mich.   271. 

2.  Pomeroy's  Equity  Jur.  865. 


450  THE  LAW  0F  LAND  CONTRACTS  [§  198 

Land  Contracts. — Where  a  scrivener  in  drawing  a  land  contract 
inadvertently  included  the  whole  lot  instead  of  the  east  one- 
half,  parol  testimony  was  admissible  to  establish  such  mistake 
and  such  evidence  is  not  open  to  the  objection  that  it  tends  to 
vary  a  written  contract  by  parol.  Equity  has  jurisdiction  to 
reform  such  an  instrument  and  if  the  property  has  been  sold 
at  the  time  of  the  action  and  the  rights  of  innocent,  third 
parties  have  intervened,  the  court  has  authority  to  decree  a 
lien  on  the  unpaid  purchase  price  due  to  the  vendee  from  his 
assignee.3 

It  would  also  seem  that  if  the  purchase  price  had  been  fully 
paid  to  such  vendee,  then  the  court  would  have  authority  to 
enter  a  decree  for  damage  in  lieu  of  the  decree  for  reforma- 
tion.4 

Where  by  a  mutual  mistake  a  land  contract  was  executed, 
although  the  intent  of  the  parties  was  merely  to  secure  to  the 
vendees  therein  an  undivided  one-half  interest  in  the  premises 
conveyed,  they  having  advanced  the  money  to  make  the  pur- 
chase, a  court  of  equity  will  correct  the  instrument  so  as  to 
make  it  express  the  actual  agreement.6 

Before  a  land  contract  can  be  reformed  to  conform  to  the 
preliminary  parol  agreement  which  preceded  it,  the  evidence 
of  such  preliminary  agreement  must  be  clear  and  convincing 
or  relief  by  way  of  reformation  will  be  denied.6 

Where  the  word  "heretofore"  was  inserted  in  a  land  con- 
tract providing  for  releases  to  the  vendee  on  account  of  pay- 
ments "heretofore  made"  was  inserted  through  an  error  of  the 
scrivener  when  the  word  "hereafter"  was  intended  by  both 
the  parties,  equity  has  authority  to  reform  the  instrument  to 
express  the  true  agreement  of  the  parties.7 

Where  the  description  is  defective  and  does  not  definitely 
define  any  land,  the  court  has  authority  to  reform  the  instru- 
ment so  as  to  express  the  real  agreement  of  the  parties.8 

3.  Clark    v.    Johnson,    214    Mich.  6.  Baxter     v.     Ogossbevits,     204 

677  Mich.  249,  256. 

7.  Johnson    v.    Wilson,    11    Mich. 
114. 

8.  Burt  v.  Klixby,  75  Mich.  311; 
5.  LaBlanch  v.  Perron,  209  Mich.      Probett  v.  Walters,   70   Mich.   437; 

239.  DeWitt    v.    Tyler,    49    Mich.    614. 


4.  Murrusa    v.    Temerowski,    204 
Mich.  271. 


§  199]        REFORMATION  OF  LAND  CONTRACTS         451 

Where  by  a  mistake  of  the  scivener,  the  name  of  the  wrong 
person  was  inserted  in  the  instrument,  equity  has  authority  to 
grant  relief  and  reform  the  instrument  so  as  to  make  it  speak 
what  the  parties  intend.9 

Where  lands  have  been  platted,  a  description  of  the  same 
may  be  corrected  by  the  court  of  equity  in  an  action  to  reform 
the  plat.10 

Also  where  a  rate  of  interest  has  been  erroneously  en- 
tered.11 

As  well  as  where  a  sum  has  been  wrongfully  included  in  the 
consideration  of  an  instrument.12 

Where  a  parcel  of  land  mutually  intended  to  be  included  was 
omitted  from  a  mortgage,  by  mutual  mistake,  equity  will  re- 
form the  instrument  so  as  to  include  the  omitted  land.13 

Equity  will  also  grant  relief  and  a  contract  for  the  sale  of 
land  will  be  reformed  when  the  vendee,  being  illiterate,  signed 
a  contract  providing  for  nearly  double  the  agreed  purchase 
price.14 

And  when  in  a  land  contract  a  reservation  of  the  timber  was 
inadvertently  omitted,  although  agreed  upon.16 

Where  words  in  an  agreement  have  been  omitted  the  instru- 
ment may  be  reformed  to  conform  to  the  intention  of  the 
parties.16 

Where  a  mistake  has  been  made  in  fixing  the  boundary  line 
of  land  and  providing  for  a  party  wall,  the  agreement  will  be 
reformed  in  accordance  with  the  actual  understanding  of  the 
parties.17 

§  199.  Reformation  of  Land  Contracts — Mistakes  of  Law. — 

Where  an  instrument,  by  reason  of  a  mistake  of  law,  fails 
to  express  the  contract  which  the  parties  actually  entered 

9.  Schuler  v.  Bomander,  80  Mich.  13.  Kimball     v.     Harrington,     91 
531;    Baylon    v.    Hanover    Fire    In-      Mich.    281. 

surance  Co.,  67  Mich.  179.  14.  Harrington     v.     Brewer,      56 

10.  Gilbert  v.  Williams,  157  Mich.      M,ch'  30L 

226.  15-  Fer0  v-  Lo"d  &  Sons  Lbr.  Co., 

101  Mich.  310. 

l^th  National  Bank  v.  Pierce,  16.  Osterhant    Lbr.    Co.    v.    Rice. 

117  Mlch-  376-  93  Mich.  353. 

12.  Gordon  v.  McGinnis,  92  Mich.  17.  Eberly   v.   Heaton,   124   Mich. 

97.  205. 


452  THE  LAW  OF  LAND  CONTRACTS  [§  199 

into,  equity  will  grant  appropriate  relief,  which  may  be  either 
by  way  of  refusing  to  enforce  the  agreement  or  by  cancellation 
or  by  reformation,  to  the  same  extent  as  in  the  failure  of  the 
writing  to  express  the  real  contract  was  caused  by  a  mistake 
of  fact.18 

While  the  principle  is  often  laid  down  that  a  mistake  of 
law,  when  standing  alone,  affords  no  ground  for  relief  in 
equity,19  nevertheless  when  such  mistakes  are  made  concur- 
rently with  fraudulent  representations  as  to  the  law  made  by 
the  person  with  whom  complainant  has  had  confidential  rela- 
tions, or  is  combined  with  a  mistake  in  matters  of  fact,  or  with 
feebleness  of  mind  caused  by  sickness,  or  where  the  adverse 
party  has  been  active  in  inducing  the  mistake,  equity  will  af- 
ford relief.20 

§  200.  Reformation   of   Land   Contracts  —  Evidence.  —  The 

plaintiff  in  an  action  for  the  reformation  of  an  instrument 
must  establish  that  mistake  has  been  made  conclusively,  and 
if  the  evidence  is  doubtful  or  is  in  conflict  and  not  convincing, 
the  bill  of  complaint  will  be  dismissed.21 

§  201.  Bill  of  Complaint  to  Reform  a  Land  Contract. — The 

following  is  a  form  of  bill  of  complaint  to  correct  a  mistake 
in  the  description  of  the  property  in  a  land  contract. 

(Address  and  Introduction.) 

1st.  That  on  or  about  the day  of ,  the 

plaintiff  herein  entered  into  an  agreement  to  purchase  from 
the  defendant  herein,  the  following  described  real  estate,  to- 
wit:    (Here  describe  the  real  estate)  for  which  this  plaintiff 

then  and  there  paid  to  the  defendant  the  sum  of 

Dollars,  that  being  the  full  amount  then  and  there  due  under 
said  contract ;  the  balance  of  said  purchase  price  being  payable 
at  the  rate  of  (here  describe  the  terms  of  payment). 

18.  McGraw  v.   Muma,   164  Mich.      Life   Insurance   Co.,   44   Mich.  324; 
120.  Renard  v.  Klinck,  91  Mich.  1. 

19.  Hughes    v.    Pealer,    80    Mich. 

540;     Tompkins     v.     Hollister,     60  21.  McArthur     v.     Newhall,     106 

Mich.  470;  Lapp  v.  Lapp,  43  Mich.  Mich.   284;    Dilly  v.   Longwell,   163 

287.  Mich.    439;    Pasterno   v.    Longwell, 

20.  Tompkins     v.     Hollister,     60  163  Mich.  439;   Kinyon  v.  Cunning- 
Mich.   470;   Tabor  v.   Mich.   Mutual  ham,  146  Mich.  430. 


§  201]  REFORMATION  OF  LAND  CONTRACTS  453 

2nd.  That  thereafter  said  agreement  was  reduced  to  writ- 
ing, to-wit:  on  the day  of ,  and  duly  ex- 
ecuted by  the  plaintiff  and  defendant,  a  true  copy  of  such 
agreement  being  hereto  attached,  marked  "Exhibit  A"  and 
made  a  part  hereof.  That  through  a  mistake  of  the  scrivener 
in  drafting  said  land  contract,  the  premises  were  erroneously 
described  therein  (here  insert  erroneous  description)  instead 
of  (here  insert  the  correct  description)  as  was  intended  by 
both  the  plaintiff  and  said  defendant.  That  thereafter  said 
contract  as  duly  delivered,  this  plaintiff  retaining  a  duplicate 
copy  and  payments  have  been  made  thereon  by  this  plaintiff 
from  the  date  of  the  execution  of  such  contract  until  the  pres- 
ent date,  in  accordance  with  the  tenor  of  said  agreement. 
That  plaintiff  did  not  discover  said  mistake  until  on  the 
day  of 

3rd.  That  upon  a  discovery  of  such  mistake  in  the  descrip- 
tion of  said  property,  plaintiff  went  to  the  vendor  and  de- 
manded a  correction  of  the  same  which  vendor  then  and  there 
refused  to  make  and  still  continues  to  refuse  to  correct  the 
description  in  such  contract. 

4th.  That  by  reason  of  said  mistake  in  the  description  of 
said  land,  this  plaintiff  is  unable  to  sell  or  dispose  of  his  in- 
terest therein  or  any  part  thereof  and  that  he  will  be  unable 
to  compel  a  conveyance  of  the  land  which  he  contracted  for 
and  intended  to  buy. 

Wherefore  Plaintiff  Prays: 

1st.  That  said  error  and  mistake  in  said  land  contract  may 
be  corrected  and  said  land  contract  reformed  so  as  to  duly 
describe  the  land  and  premises  intended  to  have  been  then 
and  there  described  and  included  in  such  land  contract. 

2nd.  That  this  plaintiff  may  be  decreed  to  be  the  equitable 
owner  of  said  land  intended  to  have  been  included  in  said  land 
contract  and  further  that  said  defendant  be  required  to  execute 
a  land  contract  containing  the  correct  description  of  said  prem- 
ises and  deliver  the  same  to  this  plaintiff. 

3rd.  That  plaintiff  may  have  such  further,  other  and  dif 
ferent  relief  in  the  premises  as  may  be  agreeable  to  equity  and 
good  conscience. 


454  THE  LAW  OF  LAND  CONTRACTS  [§201 

And  this  plaintiff  will  ever  pray. 


Attorney  for  Plaintiff. 

§  202.  Form  of  Decree  Reforming  Land  Contract. 

STATE  OF  MICHIGAN 

IN  THE  CIRCUIT  COURT  FOR  THE  COUNTY  OF 

IN  CHANCERY 
At  a  session  of  said  Court  held  in  the  Court  House  in  the 

(here  insert  place)  in  said  county  on  the day  of 

,  in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and  

PRESENT,  The  Honorable 

Circuit  Judge. 

The  above  entitled  cause  having  come  on  to  be  heard  upon 
the  pleadings  and  proofs  taken  therein,  the  Court  having  heard 
the  testimony  and  the  arguments  of  counsel  for  the  respective 
parties  and  being  fully  advised  in  the  premises,  doth  find. 

1.  That  all  the  material  allegations  of  the  plaintiff's  Bill  of 
Complaint  are  true  and  have  been  established  by  the  evidence. 

NOW,  THEREFORE,  on  due  consideration  thereof,  it  is 
ORDERED,  ADJUDGED  and  DECREED,  and  the  Court  now 
here  doth  hereby  ORDER,  ADJUDGE  and  DECREE  that  said 
land  contract  heretofore  executed  and  delivered  by  (here  insert 
name  of  party  of  first  part)  as  party  of  the  first  part  and  (here 
insert  name  of  party  of  second  part)  as  party  of  the  second 

part,  and  recorded  in  Liber  on  Page in  the  Office  of 

the  Register  of  Deeds  of County,  be,  and  the  same 

is  hereby  reformed  in  the  following  particulars :  The  descrip- 
tion of  the  premises  described  therein  shall  read  as  follows, 
to-wit:    (here  insert  the  correct  description). 

It  is  further  ORDERED,  ADJUDGED  and  DECREED  that 
the  plaintiff  may  record  this  decree  with  the  Register  of  Deeds 
of County  and  upon  the  due  registration  of  such  de- 
cree, the  same  shall  be  notice  to  all  parties  of  the  reformation 
of  said  instrument  in  accordance  with  the  terms  hereof. 


Circuit  Judge. 


s  203 J  REFORMATION  OF  LAND  CONTRACTS  455 

§  203.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
Involving  Reformation  of  Land  Contracts. — 

CLARK  v.  JOHNSON,  214  Mich.  578— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Answer  of  Defendants  Johnson. 

(d)  Answer  and  Cross-Bill  of  Defendants  Rogerson. 

(e)  Answer  of  Defendants  Johnson  to  Cross-Bill  of  Defendants 

Rogerson. 

(f)  Answer  of  Plaintiff  to  Cross-Bill  of  Defendant  Rogerson. 

(g)  Court's  Opinion, 
(h)  Decree. 

(i)  Authorities    Cited    by    Defendants    Johnson — Brief   for    Defendants 

Johnson, 
(j)  Authorities  Cited  by  Plaintiff— Brief  for  Plaintiff. 
CLARK  v.  JOHNSON,  214  Mich.  578— 

(a)  Brief  Statement  of  Fact. — A  bill  of  complaint  was  filed  to  reform 
a  land  contract  wherein  the  scrivener  in  drawing  the  contract  included 
the  whole  lot  instead  of  the  east  one-half,  and  the  vendee,  although  aware 
of  this  mistake,  attempted  to  convey  the  whole  lot  to  third  parties.  A 
decree  for  plaintiff  was  entered  which  was  affirmed  on  appeal  of 
defendants. 

(b)  Bill  of  Complaint.—  (Caption.)  Frank  L.  Clark  and  Hannah  Clark, 
his  wife,  respectfully  show  unto  the  court  as  follows,  to-wit: 

1.  That  they  are  husband  and  wife  and  reside  in  the  Village  of  Bir- 
mingham, Oakland  County,  Michigan,  and  are  of  the  age  of  21  years  and 
upwards. 

2.  That  theretofore,  to-wit,  on  or  about  the  17th  day  of  August,  in  the 
year  one  thousand  nine  hundred  and  sixteen,  they  acquired  title  by  war- 
ranty deed  from  Warren  Clizbe  and  wife  of  the  following  described 
property,  to-wit: 

The  east  one-half  and  the  west  one-quarter  of  a  parcel  of  land  situate 
in  the  southwest  quarter  of  the  southeast  quarter  of  the  northeast  quar- 
ter of  section  36,  town  2  north,  range  10  east,  beginning  at  an  iron 
stake  on  the  south  line  of  Landon  street  84  feet  west  from  an  iron 
stake  at  the  northern  apex  of  lot  16,  Grove  plat,  thence  westerly  on 
south  line  of  Landon  street  80  feet,  to  an  iron  stake,  thence  south  104 
feet  and  7  inches  to  an  iron  stake,  which  is  106  feet  north  of  north 
line  of  Lincoln  avenue,  thence  east  parallel  with  Lincoln  avenue  80  feet, 
to  an  iron  stake,  thence  north  to  Landon  street  at  the  point  of  beginning. 

Situated  in  the  Village  of  Birmingham,  Oakland  County,  Michigan,  as 
appears  by  the  terms  of  a  certain  warranty  deed  dated  August  17, 
1916,  and  recorded  in  the  office  of  the  Register  of  Deeds  for  Oakland 
County,  in  Liber  2SS  of  deeds  on  page  257;  reference  being  had  thereto 
for  greater  certainty. 


456  THE  LAW  OF  LAND  CONTRACTS  [§203 

3.  And  these  plaintiffs  further  show  unto  the  court  that  on  or  about 
the  28th  day  of  October,  1916,  they  entered  into  a  land  contract  with 
Abner  T.  Klees  and  Mabel  Klees,  his  wife,  of  Birmingham,  Michigan, 
for  the  sale  of  the  easterly  40  feet  of  the  lands  described  in  said  deed, 
and  that  the  said  Abner  T.  Klees  and  Mabel  Klees,  in  pursuance  of  said 
land  contract,  went  into  possession  of  said  premises.  That  said  land 
contract  was  duly  recorded  in  the  office  of  the  register  of  deeds  for 
the  county  of  Oakland  on  the  1st  day  of  February,  1918,  in  Liber  312 
of  deeds,  pages  449  and  450;  reference  being  had  thereto  for  greater 
certainty.  That  at  the  time  said  contract  was  drawn,  there  was  an 
error  in  the  description  of  the  lands  intended  to  be  sold  and  contracted 
for.  That  it  was  the  intent  and  the  express  understanding  and  agree- 
ment of  all  the  parties,  that  plaintiffs  were  contracting  to  convey,  and 
Abner  T.  Klees  and  wife  were  contracting  to  purchase  the  easterly  40 
feet  of  said  80  foot  strip;  that  the  scribner,  who  drew  the  contract, 
by  mistake  copied  the  entire  description  in  the  deed,  so  that  the  con- 
tract purported  to  convey  the  east  one-half  and  also  the  west  one-half 
of  said  parcel  of  land.  That  the  said  Abner  T.  Klees  and  wife,  however, 
understood  that  they  were  purchasing  the  east  40  feet  of  said  property  as 
appears  by  their  affidavit  recorded  in  the  office  of  the  Register  of  Deeds 
for  Oakland  County  in  connection  with  said  land  contract  in  Liber  312 
of  deeds,  on  page  449;  reference  being  had  thereto  for  greater  certainty. 

4.  That  thereafter  the  said  Abner  T.  Klees  and  Mabel  Klees,  his  wife, 

assigned  their  interest  in  said  land  contract  to  Walter  F.  Johnson  of 

Birmingham,  Michigan.     That  the  time  said  assignment  was  made  of 

said  interest  to  the   said  Walter   F.   Johnson   and   Esther  R.   Johnson, 

his  wife,  that  it"  was  clearly  understood  and  agreed  on  the  part  of  the 

said  plaintiffs  and  the  said  Abner  T.  Klees  and  wife  and  the  said  Walter 

F.  Johnson,  and  Esther  R.  Johnson,  his  wife,  that  the  interest  which  the 

said  Abner  T.  Klees  and  wife  had  in  said  property  was  an  interest  in 

the  easterly  40  feet  only  and  such  assignment  of  said  interest  in  said 

land  contract  was  made  with  that  express  understanding  and  agreement 

and  the  said  assignment  was  accepted  and  received  by  the  said  Walter 

F.  Johnson  and  Esther  R.  Johnson,  his  wife,  with  the  full  knowledge 

and  understanding  on  their  part  that  said  assignment  did  not  include 

and  that  said  contract  did  not  include  the  entire  80-foot  parcel  of  land, 

but  that  it  only  included  the  easterly  40  feet  and  in  spite  of  the  error 

in  the  drawing  of  the  contract,  the  said  Walter  F.  Johnson  and  Esther 

R.  Johnson,  his  wife,  were  not  deceived  thereby  but  knew  at  the  time 
and  at  all  times  that  they  were  acquiring  an  interest  in  only  the  easterly 

40  feet  of  said  premises. 

5.  That  notwithstanding  the  knowledge  on  the  part  of  the  said  Walter 
F.  Johnson  and  Esther  R.  Johnson,  his  wife,  that  they  had  acquired  no 
interest  in  said  property  except  the  easterly  40  feet  thereof,  and  that 
the  said  plaintiffs  had  only  contracted  to  convey  the  easterly  40  feet 
thereof,  the  said  Walter  F.  Johnson  and  Esther  R.  Johnson,  his  wife,  with 
intent  to  defraud,  harm,  injure,  and  cheat  these  plaintiffs  out  of  their 


§203  |  REFORMATION  OF  LAND  CONTRACTS  457 

said  property,  thereafter  contracted  with  Gordon  Rogerson  and  Emily  R. 
Rogerson,  his  wife,  to  sell  and  convey,  for  a  valuable  consideration,  all 
of  the  said  above  described  lands,  both  the  easterly  and  westerly  half 
thereof  and  that  the  said  Walter  F.  Johnson  and  Esther  R.  Johnson, 
his  wife,  and  the  said  Gordon  Rogerson  and  Emily  Rogerson,  his  wife, 
had  full  knowledge  and  well  knew  that  the  said  plaintiff  had  never  sold 
or  agreed  to  sell  any  portion  of  said  premises,  except  the  easterly  40 
feet  thereof;  yet,  the  said  Walter  F.  Johnson  and  Esther  R.  Johnson 
and  the  said  Gordon  Rogerson  and  the  said  Emily  Rogerson,  defendants 
herein,  seeking  to  take  advantage  of  the  mistake  of  the  scribner  in  the 
said  land  contract  above  referred  to  from  plaintiffs  to  Abner  T.  Klees 
and  wife,  and  seeking  to  cheat  and  defraud  these  plaintiffs  out  of  their 
property,  sought  by  means  of  the  land  contract  between  the  said  Walter 
F.  Johnson  and  wife  and  the  said  Gordon  Rogerson  and  wife  to  acquire 
title  to  the  entire  parcel  of  land  and  the  said  Gordon  Rogerson  and 
wife,  by  virtue  of  said  contract  with  the  said  Walter  F.  Johnson  and 
wife,  have  claimed  to  be  the  owner  by  contract  of  said  entire  parcel  and 
so  claim  at  this  time.  That  they  have  sought  to  exercise  the  rights  of 
ownership  and  possession  in  spite  of  the  protest  of  these  plaintiffs  over 
said  entire  parcel  of  land;  that  they  claim  to  be  entitled  to  the  posses- 
sion of  the  entire  parcel  of  property  and  all  of  said  defendants  refuse  to 
permit  the  mistake  to  be  corrected  or  rectified  or  the  contracts  modified 
to  conform  to  the  intention  of  the  parties  and  the  real  facts  in  the  case 

6.  That  in  truth  and  in  fact,  the  said  defendants  all  knew  and  have 
always  known,  since  the  assignment  of  said  contract  of  Abner  T.  Klees 
and  wife  to  Walter  F.  Johnson  and  wife,  what  the  real  intention  of  the 
parties  was  and  that  these  plaintiffs  never  sold  or  contracted  to  sell 
anything  except  the  easterly  40  feet  of  said  property. 

7.  Yet,  notwithstanding  this  knowledge  on  the  part  of  said  defend- 
ants, they  have  wrongfully,  fraudulently  and  intentionally  taken  pos- 
session of  all  of  plaintiff's  property  and  claim  to  be  the  owners  thereof, 
and  said  defendants,  wrongfully  and  with  intent  to  cheat  and  defraud 
these  plaintiffs  are  detaining  and  seeking  to  detain  and  claiming  to 
own  the  said  westerly  40  feet  of  said  parcel  of  land. 

8.  That  the  contract  existing  between  these  plaintiffs  and  Abner  T. 
Klees  and  Mabel  Klees,  as  assigned  to  Walter  F.  Johnson  and  wife, 
defendants  herein,  and  the  contract  between  Walter  F.  Johnson  and 
wife  and  Gordon  Rogerson  and  wife,  defendants  herein,  should  be  cor- 
rected, modified,  and  changed  to  conform  to  the  real  facts  and  so  as 
to  describe  the  easterly  40  feet  of  said  parcel  of  land  only  and  the  said 
defendants  should  be  enjoined  by  an  injunction  of  this  court  from  selling, 
contracting  to  sell,  keeping  or  claiming  to  own  the  westerly  40  feet  of 
said  parcel  of  land,  or  from  excluding  or  attempting  to  exclude  these 
plaintiffs  from  their  full  title,  occupancy  and  possession  of  said  westerly 
40  feet  of  said  parcel  of  land. 


458  THE  LAW  0F  LAND  CONTRACTS  [§  203 

9.  That  the  value  of  the  land  in  question  is  in  excess  of  one  hundred 
dollars  and  that  these  plaintiffs  are  without  relief  in  the  premises  save 
in  a  court  of  equity. 

10.  In  consideration  whereof  and  to  the  end  therefore,  these  plaintiffs 
pray: 

(a)  That  the  said  Walter  F.  Johnson  and  Esther  R.  Johnson,  Gordon 
Rogerson  and  Emily  Rogerson,  defendants  herein,  may  each  of  them, 
without  oath,  their  answer  upon  oath  being  hereby  waived,  full,  true, 
direct,  and  perfect  answer  make  to  all  and  singular  the  matters  herein 
stated  and  charged. 

(b)  That  the  contract  between  these  plaintiffs  and  Abner  T.  Klees 
and  Mabel  Klees,  his  wife,  assigned  to  Walter  F.  Johnson  and  Esther 
R.  Johnson,  his  wife,  may  be  corrected,  changed,  and  modified  so  as 
to  describe  the  easterly  one-half  of  the  parcel  of  land  therein  referred 
to;  said  contract  being  recorded  in  Liber  312  of  deeds,  on  pages  449  and 
450  Oakland  County  Register  of  Deeds  office. 

(c)  That  the  contract  or  agreement  of  sale  between  Walter  F.  Johnson 
and  Esther  R.  Johnson,  his  wife,  and  Gordon  Rogerson  and  Emily  Roger- 
son,  his  wife,  may  be  changed,  corrected  and  modified  so  as  to  describe 
the  easterly  40  feet  of  the  land  described  and  referred  to  in  the  contract 
mentioned  in  Subdivision  B  of  the  prayer  for  relief  in  this  bill. 

(d)  That  the  said  defendants,  jointly  and  severally,  may  be  restrained 
and  enjoined  by  this  court  from  selling,  assigning,  transferring,  encumber- 
ing, leasing,  or  exercising  any  rights  of  ownership  over  the  westerly 
40  feet  of  the  lands  described  in  this  bill  of  complaint  or  from  claim- 
ing any  right,  title,  or  interest  therein  by  virtue  of  the  contract  in 
existence  between  the  plaintiffs  in  this  cause  and  Abner  T.  Klees  and 
Mabel  Klees,  his  wife,  or  by  virtue  of  any  contract  or  sales  agreement 
now  in  existence  between  the  defendants  herein. 

(e)  That  the  said  defendants,  jointly  and  severally,  may  be  restrained 
and  enjoined  from  interfering  with  plaintiff's  right  of  possession,  entry 
and  from  the  exercise  of  authority  and  ownership  in,  to  and  over  the 
westerly  40  feet  of  said  above  described  parcel  of  land. 

(f)  That  these  plaintiffs  may  have  such  other  and  further  relief  in 
the  premises  as  may  be  agreeable  to  equity  and  good  conscience. 

And  these  plaintiffs  will  every  pray. 

Frank   L.   Clark, 
Hannah  Clark. 
A.  L.  Moore, 

Attorney  for  plaintiffs, 

Pontiac,  Michigan. 
(Verification.) 

Amendment  to  Bill  of  Complaint. —  (Caption.)  Now  come  the  plain- 
tiffs, by  their  attorney  Andrew  L.  Moore,  and  moves  the  court  to  enter  an 
order  granting  permission  to  plaintiffs  to  amend  the  prayer  contained 
in  the  bill  of  complaint  on  file  in  said  cause  by  adding  thereto  the  fol- 
lowing section: 


§  203]  REFORMATION  OF  LAND  CONTRACTS  459 

"Section  H.  That  in  the  event  the  court  finds  that  loss  or  injury  would 
result  to  Gordon  Rogerson  and  Emily  Rogerson,  defendants  herein,  if 
the  contract  between  plaintiffs  and  Abner  T.  Klees  and  Mabel  M.  Klees. 
which  contract  was  assigned  to  Walter  F.  Johnson  be  reformed,  and 
further  finds  that  the  said  Gordon  Rogerson  and  Emily  Rogerson,  are 
Innocent  purchasers  in  good  faith  of  the  entire  eighty  feet  of  said  prem- 
ises from  the  said  Walter  F.  Johnson  and  wife,  then  in  that  event,  these 
plaintiffs  pray  that  the  court  may  determine  the  cash  value  of  the  said 
westerly  40  feet  of  land  and  that  the  said  defendants,  Walter  F.  Johnson, 
and  his  wife,  Esther  R.  Johnson,  may  be  decreed  to  pay  to  these  plain 
tiffs  in  cash  an  amount  equal  to  the  value  of  said  westerly  40  feet  as 
determined  by  said  court  in  lieu  of  having  said  land  contract  reformed 
as  herein  prayed  for,  and  that  these  plaintiffs  may  be  decreed  to  have 
a  lien  in  the  nature  of  a  mortgage  upon  said  easterly  40  feet  of  the 
premises  described  in  paragraph  two  of  this  bill  of  complaint  to  secure 
the  payment  thereof  and  that  said  sum  shall  be  deemed  to  be  due  and 
payable  forthwith;  and  that  in  the  event  of  a  decree  for  the  cash  value 
of  said  westerly  40  feet,  that  plaintiffs  be  decreed  to  be  entitled  to 
their  reasonable  costs  and  charges  to  be  taxed  against  the  said  Walter 
F.  Johnson,  and  Esther  R.  Johnson." 

A.  L.  Moore 
♦  Attorney  for  plaintiffs 

Dated  July  9,  1919. 

(c)  Answer  of  Walter  F.  Johnson  and  Esther  R.  Johnson. — (Caption.) 
Walter  F.  Johnson  and  Esther  R.  Johnson,  defendants  herein,  answering 
the  bill  of  complaint  filed  in  said  cause,  respectfully  show  unto  said  court 
as  follows: 

I.  These  defendants  admit  the  allegations  of  paragraph  one  of  said 
bill  of  complaint. 

II.  These  defendants  have  not  sufficient  information  to  admit  or  deny 
the  allegations  of  paragraph  two,  and  therefore  neither  admit  nor  deny 
the  same,  but  leave  plaintiffs  to  the  proof. 

III.  In  answer  to  paragraph  three  of  said  bill  of  complaint  these  defend- 
ants say: 

They  admit  that  plaintiffs  entered  into  a  contract  with  Abner  T.  Klees 
and  wife,  under  date  of  October  28,  1916,  but  deny  that  the  contract 
was  for  the  sale  of  the  easterly  forty  (40)  feet  of  the  land;  that  as  to 
the  remainder  of  said  paragraph,  these  defendants  have  not  sufficient 
Information  to  form  a  belief  and  therefore  neither  admit  nor  deny  the 
same,  but  leave  plaintiffs  to  their  proof. 

IV.  In  answer  to  paragraph  four  of  said  bill  of  complaint  these  defend- 
ants say: 

They  admit  that  Abner  T.  Klees  and  Mable  Klees,  his  wife,  assigned 
their  interest  in  a  contract  for  the  sale  of  lands  described  in  paragraph 
two,  to  these  defendants,  but  deny  that  there  was  an  understanding  that 
said  Klees  and  wife  had  an  interest  in  only  40  feet  of  said  land,  and 


460  THE  LAW  OF  LAND  CONTRACTS  [§203 

that  the  assignment  was  made  with  that  understanding,  and  deny  that 
they  had  any  knowledge  except  such  as  was  expressed  in  the  contract 
Itself. 

V.  In  answer  to  paragraph  five  of  said  bill  of  complaint,  these  defend 
ants  say:  These  defendants  deny  any  knowledge  other  than  that  ex- 
pressed in  the  written  agreement  between  Abner  T.  Klees  and  wife  and 
plaintiffs,  which  agreement  was  duly  and  legally  assigned  to  these 
defendants  and  consented  to  by  plaintiffs,  they  deny  that  there  was 
any  intention  on  the  part  of  these  defendants  of  defrauding,  harming 
injuring  and  cheating  plaintiffs  out  of  their  said  property. 

That  they,  under  date  of  December  5,  1917,  entered  into  a  contract 
with  Gordon  Rogerson  and  Emily  Rogerson,  his  wife,  to  sell  and  convey 
to  them  the  aforesaid  lands  for  the  total  consideration  of  five  thou- 
sand   ($5,000)    dollars. 

They  deny  that  these  defendants  knew  that  plaintiffs  were  selling 
the  easterly  40  feet  of  said  land,  and  deny  that  they  were  seeking 
to  take  any  advantage  whatever  of  said  plaintiffs;  they  admit  they  claimed 
to  be  the  owner  of  the  eighty  feet,  and  admit  that  they  refused  to  permit 
the  alleged  mistake  to  be  corrected,  as  there  was  no  mista!ke  or  mis- 
understanding on  the  part  of  these  defendants. 

VI.  In  answer  to  paragraph  six  of  said  bill  of  complaint,  these  defend- 
ants say:  That  if  the  intention  was  any  different  from  that  expressed 
In  the  contract,  they  had  no  knowledge  of  it,  and  they  deny  that  they 
purchased  anything  other  than  the  contract  expressed  on  its  face. 

VII.  In  answer  to  paragraph  seven  of  said  bill  of  complaint,  these 
defendants  say:  They  deny  that  there  was  any  wrong  or  fraud  involved 
in  the  transaction  itself,  and  while  they  claim  to  own  eighty  (80)  feet 
of  land,  instead  of  forty  (40)  feet,  it  is  because  that  was  the  quantity 
purchased. 

VIII.  In  answer  to  the  eighth  paragraph  of  said  bill  of  complaint,  these 
defendants  deny  that  the  contract  should  be  modified  or  changed  in  any 
respect  whatever;  that  if  any  mistake  was  made  in  the  contract  prior 
to  its  delivery  to  Abner  T.  Klees,  these  defendants  had  no  knowledge 
of  it,  and  the  mistake  was  one  that  plaintiffs  themselves  made,  and 
that  the  defendants  herein  are  innocent  parties,  and  should  not  be 
called  upon  to  suffer  for  the  mistake  made  by  plaintiffs. 

IX.  These  defendants  admit  the  allegations  set  forth  in  the  ninth  para- 
graph of  said  bill  of  complaint. 

X.  These  defendants  further  say  that  in  the  contract  entered  into 
between  plaintiffs  and  Abner  T.  Klees  and  Mabel  Klees,  his  wife,  under 
date  of  October  28,  1916,  it  appears  that  the  said  Klees  and  wife  were 
paying  therefor  the  total  consideration  of  three  thousand  four  hundred 
dollars;  that  at  the  time  of  the  purchase  by  these  defendants,  they  paid 
Klees  and  wife  four  thousand  five  hundred  dollars  for  the  property, 
which  sum  would  be  a  reasonable  consideration  for  eighty  feet  of 
land  described  in  said  bill. 


§  203  J  REFORMATION  OF  LAND  CONTRACTS  461 

Said  Klees  and  wife  thereby  making  a  profit  of  one  thousand  one 
hundred  dollars  upon  the  sale  thereof;  that  this  sale  was  consummated 
under  date  of  November  3,  1917,  as  shown  by  copy  of  assignment  hereto 
attached  and  made  a  part  hereof,  the  original  of  which  will  be  produced 
and  proved  as  this  court  may  direct;  that  at  the  time  this  assignment 
was  made,  it  was  duly  consented  to  by  plaintiffs  as  shown  by  the  assign- 
ment, that  thereafter  from  the  date  of  said  assignment,  and  up  to  the 
present  time,  said  plaintiffs  received  and  are  continuing  to  receive  pay- 
ments upon  the  contract,  in  accordance  with  its  terms,  that  said  plaintiff 
Frank  L.  Clark  was  fully  advised  as  to  the  transaction  between  these 
defendants  and  Abner  T.  Klees,  at  the  time  it  took  place,  and  participated 
in  the  transaction  and  well  knew  the  provisions  of  the  contract  assigned 
to  these  defendants. 

These  defendants  not  confessing  nor  admitting  that  any  matter,  cause 
or  thing  in  the  said  bill  contained,  and  not  hereby  sufficiently  answered, 
is  true  to  their  knowledge  or  belief  deny  that  said  plaintiffs  are  entitled 
to  any  relief  against  them  or  either  of  them  by  reason  of  anything  said 
bill  contained,  and  prays  to  be  hence  dismissed  with  their  costs  in  this 
behalf  sustained. 

Walter  F.  Johnson, 
Esther  R.  Johnson, 
By  John  J.  Gafill, 

Their  attorney. 

(c)  Answer  of  Walter  F.  Johnson  and  Esther  R.  Johnson  to  Amendment 
to  Bill  of  Complaint. —  (Caption.)  Now  come  the  defendants,  Walter  E. 
Johnson,  and  Esther  R.  Johnson,  defendants  herein,  in  answer  to  the 
amendment  to  the  said  bill  of  complaint  for  further  answer  show  unto 
the  court  as  follows: 

The  said  plaintiffs,  Frank  L.  Clark  and  Hannah  Clark,  his  wife,  are 
not  entitled  to  the  relief  prayed  for  in  Section  H  of  said  amended  bill 
of  complaint,  as  said  plaintiffs  had  knowledge  prior  to  the  sale  to  Gordon 
Rogerson,  and  Emily  R.  Rogerson  that  said  sale  was  to  be  made,  and 
said  plaintiffs  did  not  make  known  to  said  defendants  their  intention 
to  question  said  sale  or  interfere  with  the  same,  but  permitted  the  said 
defendants,  Walter  F.  Johnson  and  Esther  R.  Johnson,  to  make  sale 
without  objection,  and  are  estopped  from  setting  up  any  claim  as 
against  said  defendants,  Walter  F.  Johnson  and  Esther  R.  Johnson,  for 
reimbursement  for  the  westerly  40  feet  referred  to  in  said  Section  H, 
being  the  40  feet  in  question  in  this  action.  That  said  plaintiffs 
are  not  entitled  to  any  relief  because  of  their  carelessness  in  mak- 
ing said  contract  and  because  said  defendants,  Walter  F.  Johnson  and 
Esther  R.  Johnson,  are  innocent  purchasers  of  the  eighty  feet  agreed 
to  be  conveyed  by  the  terms  of  said  contract,  and  had  no  knowledge  or 
notice  prior  to  the  sale  to  them  of  said  eighty  feet.  The  said  plaintiffs 
consented  to  the  assignment  to  said  Walter  F.  Johnson  and  Esther  R. 
Johnson   with   full   knowledge   of  the   description  set  forth   in   said   con- 


462  THE  LAW  0F  LAND  CONTRACTS  [§  203 

tract.  And  further  answering  said  bill  of  complaint,  these  defendants 
say  that  said  plainitffs  are  not  entitled  to  the  relief  prayed  for  the  reason 
that  the  contract  specifies  the  manner  and  form  of  payments  to  be  made, 
and  said  defendants  would  be  subjected  to  great  hardship  and  loss  If 
required  to  pay  in  cash  any  sum  whatever,  and  above  the  amount  speci- 
fied in  said  contract. 

Walter  F.  Johnson 
Esther  R.  Johnson. 
John  J.  Gafill, 

Attorney  for  Walter  F.  Johnson  and 
Esther  R.  Johnson, 
(d)  Answer    of    Gordon    Rogerson    and    Emily    Rogerson  —  (Caption.) 
Gordon  Rogerson  and  Emily  Rogerson,  defendants  herein,  answering  the 
bill  of  complaint  herein,  respectfully  show  unto  the  court  as  follows: 

I.  These  defendants  having  no  knowledge  of  the  allegations  of  para- 
graphs one,  two,  three  and  four  of  said  bill  of  complaint,  neither 
admit  nor  deny  same,  but  leave  plaintiffs  to  their  proofs. 

II.  Answering  paragraph  five  of  said  bill  of  complaint,  these  defend- 
ants admit  that  they  made  a  contract  with  Walter  F.  Johnson,  and 
Esther  R.  Johnson,  his  wife,  for  the  purchase  of  the  premises  described 
in  paragraph  two  of  said  bill  of  complaint,  which  contract  is  hereto  at- 
tached and  marked  Exhibit  A. 

They  admit  that  they  claim  to  be  the  owners  by  contract  of  said 
entire  parcel;  that  they  seek  to  exercise  the  rights  of  ownership  and 
possession  over  said  entire  parcel  of  land;  that  they  claim  to  be  entitled 
to  the  possession  of  the  entire  parcel  of  property.  They  admit  that 
they  refuse  to  surrender  their  rights  in  40  feet  of  the  said  property 
These  defendants  deny  all  of  the  other  allegations  contained  in  paragraph 
five. 

III.  They  deny  the  allegations  of  paragraph  six. 

IV.  They  admit  that  they  have  taken  possession  of  all  of  said  property 
and  claim  to  be  the  owners  thereof  by  contract;  but  they  deny  that  their 
actions  are  wrongful  or  fraudulent. 

V.  They  deny  the  allegations  of  paragraph  eight  of  said  bill  of  com- 
plaint. 

VI.  They  admit  that  the  value  of  the  land  in  question  is  in  excess  of 
$100.00. 

And  these  defendants,  seeking  affirmative  relief,  by  way  of  cross-bill, 
respectfully  show  unto  the  court  as  follows: 

1.  That  they  are  husband  and  wife  and  are  residents  of  the  Village 
of  Birmingham  said  county  and  state. 

2.  That  on  to-wit,  the  5th  day  of  December,  A.  D.  1917,  they  executed 
a  certain  land  contract  in  which  they  appear  as  vendees  and  said  defend- 
ants Walter  F.  Johnson  and  Esther  R.  Johnson  appear  as  vendors, 
whereby  said  vendors,  for  the  consideration  of  $500  agreed  to  sell  the 
premises  described  in  paragraph  two  of  the  bill  of  complaint  filed  herein 


§203] 


REFORMATION  OF  LAND  CONTRACTS  463 


a  copy  of  said  contract  being  hereto  attached  and  marked  Exhibit  A. 
That  said  defendant  Walter  F.  Johnson  informed  your  orators  that  he 
was  purchasing  the  land  from  Frank  L.  Clark  and  wife.  Your  orators 
read  over  said  contract  before  signing  same,  and  also  gave  the  propo- 
sition considerable  thought  before  finally  executing  said  contract.  They 
would  not  have  purchased  said  property  if  they  had  supposed  they  were 
purchasing  only  40  feet  thereof.  That  before  the  execution  of  said  con- 
tract, said  defendant,  Walter  F.  Johnson,  read  said  contract  out  loud  to 
your  orators.  That  there  never  was  any  question  as  between  said  de- 
fendant Clark  and  your  orators  that  the  property  in  question  had  a 
width  of  80  feet. 

3.  That  said  plaintiff,  Frank  L.  Clark,  had  knowledge  that  your  orators 
believed  they  were  purchasing  the  entire  eighty  feet  of  said  premises, 
not  later  than  February  in  the  year  1918;  but  that  he  took  no  action 
until  the  filing  of  the  bill  of  complaint  in  this  action  on  the  21st  day  of 
August,  A.  D.  1918. 

4.  Your  orators  further  state  that  they  had  absolutely  no  knowledge 
and  no  means  of  knowledge  that  plaintiffs  in  this  cause  claimed  40  feet 
of  said  premises  until  several  months  after  the  execution  of  said  con- 
tract. That  your  orators  acted  in  good  faith,  were  bona  fide  purchasers 
for  value,  and  took  it  for  granted,  from  the  wording  of  said  contract, 
that  they  were  purchasing  80  feet  of  said  premises.  And  your  orators 
further  state  that  the  mistake  in  the  description  of  said  premises,  assum- 
ing that  there  ever  was  a  mistake,  was  the  fault  of  said  plaintiffs,  and 
that  as  between  your  orators  and  said  plaintiffs,  said  plaintiffs  sought 
in  equity  to  bear  the  burden  of  their  own  mistake. 

5.  That  the  present  proceedings  will  constitute  a  cloud  upon  the  title 
of  your  orators,  unless  a  decree  be  entered,  affirming  their  rights  to 
purchase  the  entire  80  feet  of  said  premises  in  accordance  with  the 
terms  of  their  contract. 

Forasmuch  as  your  orators  are  without  relief  save  in  a  court  of 
equity,  they  pray: 

(a)  That  said  plaintiffs,  Frank  L.  Clark,  and  Hannah  Clark,  and  said 
defendants,  Walter  F.  Johnson  and  Esther  R.  Johnson,  may  each  of 
them,  without  oath,  make  full,  true,  direct  and  rerfect  answer  to  the 
allegations  of  this,  your  orators'  cross-bill. 

(b)  That  said  plaintiffs  and  said  defendants  may  be  restrained  and 
enjoined  by  this  court  from  selling,  assigning,  transferring,  encumbering, 
or  exercising  any  rights  of  ownership  over  the  premises  hereinbefore 
described,  contrary  to  the  contract  rights  of  your  orators. 

(c)  That  the  contract  between  your  orators  and  said  defendants, 
Walter  P.  Johnson  and  Esther  R.  Johnson,  may  be  decreed  to  be  valid 
and  to  express  the  intention  of  the  parties  thereto;  and  that  the  contract 
between  the  said  plaintiffs  and  Abner  T.  Klees  and  Mabel  Klees,  his 
wife,   assigned   to  Walter  F.  Johnson,   may  be  upheld   and   enforced   in 


464  THB  LAW  OF  LAND  CONTRACTS  [§  203 

favor   of  your  orators,   according  to   the   letters   and   terms   thereof,   as 
affecting  the  entire  80  feet  frontage  of  said  premises. 

That  your  orators  may  have  such  other  and  further  relief  In  the 
premises  as  may  be  agreeable  to  equity  and  good  conscience. 

Gordon  Rogerson, 
Emily  Rogerson, 
Carey,  Armstrong  &  Weadock, 
Attorneys  for  Gordon  Rogerson  and 
Emily  Rogerson. 

(d)  Amendments  to  Answer  and  Cross-Bill  of  Defendants  Rogerson. — 
(Caption.)  First:  In  paragraph  II  of  said  defendants'  cross-bill,  lines 
7,  8  and  9,  strike  out  the  following  sentence,  "That  said  defendant,  Walter 
F.  Johnson,  informed  your  orators  that  he  was  purchasing  the  land  from 
Frank  L.  Clark  and  wife." 

Second:  In  paragraph  II,  the  second  line  from  the  bottom  of  page  2, 
strike  out  the  word  "Clark"  and  substitute  the  word  "Johnson." 

Gordon  Rogerson, 
Emily  Rogerson, 
By  Carey,  Armstrong  &  Weadock, 

Their  attorneys. 

(e)  Answer  of  Walter  F.,  and  Esther  R.  Johnson  to  Cross-Bill  of  De- 
fendants Rogerson. —  (Caption.)  Walter  F.  Johnson  and  Esther  R.  John- 
son, answering  the  cross-bill  of  defendants,  Gordon  Rogerson  and  Emily 
Rogerson,  say: 

1.  They  admit  the  allegations  of  paragraph  one  of  said  cross-bill. 

2.  They  admit  that  a  contract  was  entered  into  between  these  defend- 
ants and  cross-plaintiffs,  as  alleged  in  said  cross-bill,  but  do  not  know 
whether  considerable  thought  was  given  the  matter  or  not,  but  whether 
said  cross-plaintiffs  would  have  purchased  the  property  if  there  had  been 
but  40  feet,  these  defendants  cannot  admit  or  deny,  but  leave  cross- 
plaintiffs  to  their  proof. 

3.  They  admit  the  allegations  of  paragraphs  three,  four  and  five  of 
said  bill  of  complaint,  and  admit  that  said  defendant  is  entitled  to  the 
relief  prayed  for. 

Walter  F.   Johnson, 
Esther  R.  Johnson, 
By  John  J.  Gafill, 

Their  attorney. 
John  J.  Gafill, 

Attorney  for  Walter  F.  Johnson  and 

Esther  R.  Johnson, 
(f)  Answer  of  Plaintiffs  to  Defendants  Gordon  Rogerson's  and  Emily 
Rogerson's  Answer  in  the  Nature  of  Cross-Bill. —  (Caption.)     Plaintiffs,  in 
the  above   entitled   cause,   answering   defendants   Gordon   Rogerson  and 
Emily  Rogerson,  answering  in  the  nature  of  cross-bill,  say: 


§  2031  REFORMATION  OF  LAND  CONTRACTS  465 

1.  They  admit  the  allegations  in  paragraph  one  of  defendants'  cross-bill. 

2.  They  neither  admit  nor  deny  the  allegations  contained  in  paragraph 
two  and  leave  the  defendants  to  prove  the  same  as  they  have  in  their 
cross-bill  alleged. 

3.  Plaintiffs  deny  each  and  every  material  allegation  alleged  in  para- 
graph three. 

4.  Plaintiffs  deny  each  and  every  material  allegation  contained  in  para- 
graph four  of  said  cross-bill. 

5.  Plaintiffs  deny  that  defendants  are  entitled  to  the  relief  prayed  for 
and  pray  that  the  said  cross-bill  may  be  dismissed  and  the  relief  prayed 
for  therein  denied. 

Frank  L.  Clark, 
Hannah  Clark, 

Plaintiffs. 

Dated  September  26,  1918. 
A.  L.  Moore, 

Attorney  for  plaintiffs, 
Pontiac,  Michigan. 

(g)  Court's  Opinion. —  (Caption.)  Bill  of  complaint  as  originally  filed 
in  this  cause,  prayed  for  the  reformation  of  a  certain  land  contract  and 
asked  that  the  westerly  40  feet  of  the  land  described  in  the  bill  of  com- 
plaint may  be  decreed  to  be  the  property  of  plaintiff.  An  amendment 
was  subsequently  made  to  the  bill  of  complaint,  praying  that: 

"In  the  event  the  court  finds  that  loss  or  injury  would  result  to  Gordon 
Rogerson  and  Emily  Rogerson,  defendants  herein,  if  the  contract  be- 
tween plaintiffs  and  Abner  T.  Klees  and  Mabel  M.  Klees,  which  contract 
was  assigned  to  Walter  F.  Johnson,  be  reformed,  and  further  finds  that 
the  said  Gordon  Rogerson  and  Emily  Rogerson  are  innocent  purchasers 
in  good  faith  of  the  entire  80  feet  of  said  premises  from  the  said  Walter 
F.  Johnson  and  wife,  then  in  that  event,  these  plaintiffs  pray  that  the 
court  may  determine  the  cash  value  of  the  said  westerly  40  feet  of  land 
and  that  the  said  defendants,  Walter  F.  Johnson  and  his  wife,  Esther  R. 
Johnson,  may  be  decreed  to  pay  to  these  plaintiffs  in  cash  an  amount 
equal  to  the  value  of  said  westerly  40  feet  as  determined  by  said  court 
in  lieu  of  having  said  land  contract  reformed  as  herein  prayed  for,  and 
that  these  plaintiffs  may  be  decreed  to  have  a  lien  in  the  nature  of  a 
mortgage  upon  said  easterly  40  feet  of  the  premises  described  in  para- 
graph two  of  this  bill  of  complaint  to  secure  the  payment  thereof  and 
that  said  sum  shall  be  deemed  to  be  due  and  payable  forthwith;  and 
that  in  the  event  of  a  decree  for  the  cash  value  of  said  westerly  40 
feet,  that  plaintiffs  be  decreed  to  be  entitled  to  their  reasonable  costs 
and  charges  to  be  taxed  against  the  said  Walter  F.  Johnson  and  Esther 
R.  Johnson." 

An  answer  and  cross-bill  is  filed  by  the  respective  defendants  con- 
tending that  they  acted  in  good  faith  in  the  various  transactions  alleged 
therein  and  that  plaintiff  is  without  remedy  in  a  court  of  equity. 


466  THE  LAW  OF  LAND  CONTRACTS  [§  203 

At  the  hearing  it  was  substantially  conceded  that  the  defendants. 
Gordon  Rogerson's  and  Emily  Rogerson's  contention  was  correct,  and 
that  they  having  purchased  the  entire  premises  in  good  faith,  that  they 
should  not  be  disturbed  in  carrying  out  the  terms  of  their  contract  with 
defendant  Johnson  in  acquiring  the  entire  premises. 

The  controversy  in  this  case  grows  out  of  a  peculiarly  worded  de- 
scription of  real  estate  which  describes  "the  east  one-half  and  the  west 
one-half  of  a  parcel  of  land,  etc.,"  which  taken  as  a  whole  includes 
an  80-foot  lot.  This  lot  was  acquired  by  plaintiff,  August  17,  1916,  from 
one  Clizbe  containing  this  peculiar  description  in  the  deed.  On  the 
28th  of  October,  1916,  plaintiff  sold  on  a  land  contract  the  easterly  40 
feet  of  this  lot  to  one  Abner  T.  Klees  and  Mabel  Klees,  his  wife,  and 
made  arrangements  with  the  vendees  to  erect  them  a  dwelling  house 
upon  this  parcel.  The  scrivenor  who  drew  the  contract,  however,  in- 
cluded the  whole  description,  viz.:  "The  east  one-half  and  the  west 
one-half"  in  the  contract;  his  testimony  being,  however,  that  he  used 
the  description  furnished  him  by  the  vendor,  Mr.  Clark.  Subsequently 
Mr.  Klees  and  wife  arranged  to  sell  their  contract  to  Walter  F.  Johnson, 
one  of  the  defendants  herein,  and  accepted  as  payment  for  the  same 
an  automobile  and  a  check  for  the  balance.  The  transaction  was  evi- 
denced by  an  assignment  of  their  land  contract  to  Mr.  Johnson  on  the 
3rd  of  November,   1917. 

The  testimony  establishes  the  fact  that  at  the  time  this  assignment 
was  made  and  before  the  keys  to  the  automobile  had  been  delivered 
and  before  the  check  had  been  cashed  by  Mr.  Johnson,  that  he  was 
advised  by  the  scrivenor  Mr.  Cobb,  Mr.  Clark,  Mr.  Campbell  and  Mr. 
Valentine,  the  latter  being  agents  for  the  respective  parties,  that  he  was 
acquiring  the  property  owned  by  Mr.  Klees,  which  included  only  the 
east  40  feet  of  this  description,  and  not  the  westerly  40  feet.  This  fact, 
according  to  the  testimony,  was  clearly  brought  to  Mr.  Johnson's  atten- 
tion and  was  made  plain  to  him  just  what  Mr.  Klees  actually  owned. 

It  is  therefore  evident  that  this  erroneous  description  was  known  to 
both  Mr.  Clark,  Klees  and  Johnson  when  the  contract  of  sale  was  as- 
signed to  Mr.  Johnson.  On  the  5th  of  December,  1917,  defendant  John- 
son sold  to  Gordon  Rogerson  and  Emily  Rogerson,  his  wife,  by  executing 
a  new  land  contract  the  entire  80  feet  of  said  property,  using  the  original 
erroneous  description.  It  appears  that  at  the  time  of  this  conveyance 
the  Rogersons  knew  nothing  of  the  irregularity  in  the  contract  descrip- 
tion between  Clark  and  Johnson  and  acted  in  good  faith  in  making  the 
purchase  of  the  entire  property  from  Mr.  Johnson.  The  proofs  show 
that  at  the  time  the  property  was  originally  sold  by  plaintiffs  to  Klees, 
that  the  westerly  40  feet  (tbe  parcel  in  contraversy)  was  worth  sub- 
stantially $650.00.  The  proof  also  shows  that  at  the  present  time  it  is 
worth  a  sum  considerable  in  advance  of  this  amount,  to-wit,  $1100.00, 
the  amount  that  plaintiff  now  claims  should  be  recompensed  from  de- 
fendants. 


§  203]  REFORMATION  OF  LAND  CONTRACTS  467 

I  find  that  the  defendants  Rogerson  and  wife  acted  in  good  faith  in 
their  transaction  and  are  entitled  to  have  the  contract  carried  out  with 
defendant  Johnson,  with  costs  taxable  against  him.  Plaintiff  Clark  Is 
entitled  to  the  value  of  the  westerly  40  feet  from  defendant  Johnson 
valued  at  the  time  he  erroneously  conveyed  the  same  to  Klees  and  wife, 
which  is  found  to  be,  with  interest  at  the  rate  of  six  per  cent.,  $713.00. 

1  am  not  able  to  accept  plaintiff's  claim  that  he  is  entitled  to  the  present 
value  of  the  disputed  property  for  the  reason  he  failed  to  act  timely  in 
correcting  the  mistake  that  was  repeatedly  called  to  his  attention,  and 
which  he  is  largely  responsible  for  causing  in  the  original  transaction. 
Plaintiff  is  also  entitled  to  a  lien  for  this  amount  upon  the  land  contract 
from  Johnson  to  Rogerson  and  wife,  together  with  costs  against  Johnson. 
The  contract  from  Johnson  to  Rogerson,  including  the  entire  80  feet  is 
to  be  carried  out  if  its  terms  are  complied  with,  and  plaintiff  Clark  in- 
structed to  join  in  a  deed  of  the  entire  premises  if  requested  so  to  do. 

Decree  is  so  ordered. 

Kleber  P.  Rockwell, 

Circuit  Judge 
Dated  this  4th  day  of  October,  A.  D.  1919. 

And  afterwards,  on  the  5th  day  of  November,  A.  D.  1919,  said  Circuit 
Court  made  its  decree  therein  in  favor  of  the  said  plaintiffs  and  against 
the  said  defendants  Walter  F.  Johnson  and  Esther  R.  Johnson,  which  said 
decree  was  as  follows: 

(h)  Decree. —  (Caption.)  At  a  session  of  said  court  held  at  the  court 
house  in  the  City  of  Pontiac,  Michigan,  on  the  fifth  day  of  November, 
1919. 

Present:   Hon.  Kleber  P.  Rockwell,  Circuit  Judge. 

This  cause  having  come  on  for  hearing  upon  the  pleadings  and  proofp 
taken  in  open  court,  and  after  hearing  the  testimony  and  counsel  for 
the  respective  parties,  and  the  court  being  fully  advised  in  the  premises, 
and  it  satisfactorily  appearing  to  the  court  that  the  material  facts- 
charged  in  said  bill  of  complaint  are  true,  and  that  the  said  defendant. 
Walter  F.  Johnson,  was  not  an  innocent  purchaser  of  "The  east  one-half 
and  the  west  one-half  of  a  parcel  of  land  situated  in  the  southwest  quar- 
ter of  the  southeast  quarter  of  the  northeast  quarter  of  section  36,  town 

2  north,  range  ten  east,  beginning  at  an  iron  stake  on  the  south  line  of 
Landon  street,  84  feet  west  from  an  iron  stake  at  the  northern  apex 
of  lot  sixteen  (16),  Grove  plat,  thence  westerly  on  the  south  of  Landon 
street,  80  feet  to  an  iron  stake,  thence  south  104  feet  7  inches  to  an 
iron  stake,  which  is  106  feet  north  of  the  north  line  of  Lincoln  avenue, 
thence  east  parallel  with  Lincoln  avenue,  80  feet  to  an  iron  stake,  thence 
north  to  Landon  street  at  the  point  of  beginning.  Being  in  the  Village 
of  Birmingham,  Oakland  County,  Michigan. 

And  it  further  appearing  to  the  court  that  Gordon  Rogerson  and  Emily 
Rogerson,  his  wife,  are  innocent  purchasers  of  said  above  described 
tract  from  the  said  Walter  F.  Johnson  and  Esther  R.  Johnson,  his  wife, 


468  THE  LAW  OF  LAND  CONTRACTS  [§203 

and  that  their  contract  interest   in   said  premises  cannot  be  disturbed 
without  injury  to  the  said  Gordon  Rogerson  and  Emily  Rogerson. 

It  is  therefore  ordered,  adjudged  and  decreed  that  the  land  contract 
heretofore  executed  and  now  existing  between  the  said  Walter  F.  John- 
son and  Esther  R.  Johnson,  his  wife,  parties  of  the  first  part,  and 
Gordon  Rogerson  and  Emily  Rogerson,  his  wife,  parties  of  the  second 
part,  be  and  the  same  is  hereby  confirmed  in  its  entirety  and  decreed 
to  be  a  valuable  contract  for  the  sale  of  the  entire  80  feet  of  land,  and 
that  the  said  Gordon  Rogerson  and  Emily  Rogerson,  his  wife,  are  entitled 
to  conveyance  of  said  premises  as  provided  for  in  said  contract  upon 
complying  with  the  terms  of  said  contract. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  bill  be  dis- 
missed as  to  the  said  Gordon  Rogerson  and  Emily  Rogerson,  his  wife, 
and  Hannah  Clark,  and  Abner  T.  Klees  and  Mabel  Klees,  which  contract 
Walter  F.  Johnson;  the  costs  to  be  taxed  by  the  clerk  of  this  court. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  defendant 
Walter  F.  Johnson  pay  to  the  said  plaintiffs  Frank  L.  Clark  and  Hannah 
Clark,  in  lieu  of  a  modification  of  the  contract  between  Frank  L.  Clark 
and  Hannah  Clark,  and  Abner  T.  Klees  and  Mabel  Klees,  which  contract 
was  assigned  to  Walter  F.  Johnson,  the  sum  of  seven  hundred  thirteen 
($713.00)  dollars,  which  sum  is  based  upon  the  value  of  the  westerly 
40  feet  of  said  land,  with  interest  to  date. 

It  is  further  ordered,  adjudged,  and  decreed,  that  to  secure  the  pay- 
ment of  said  sum  with  interest,  and  the  taxable  costs  to  which  plain- 
tiffs are  entitled,  that  plaintiffs  shall  have  a  lien  upon  the  entire  tract  so 
sold  by  defendants  Johnson  and  wife  to  Gordon  Rogerson,  and  wife,  and 
shall  also  have  a  lien  upon  the  moneys  due  and  hereafter  to  become 
due  from  the  said  Gordon  Rogerson  and  wife  to  the  said  Walter  F.  John- 
son and  wife  upon  the  land  contract  between  said  defendants  Johnson 
and  wife,  to  the  said  Rogerson  and  wife,  and  that  in  the  event  that  the 
said  sum  of  seven  hundred  thirteen  dollars  with  interest  and  the  taxable 
costs  are  not  paid  as  herein  provided,  that  the  said  plaintiffs  may  enforce 
said  lien  in  the  manner  provided  by  law  for  the  collection  of  judgments, 
either  on  the  chancery  or  law  side  of  courts  of  record. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  plaintiffs 
recover  their  taxable  costs  to  be  taxed  by  the  clerk  of  this  court  against 
the  said  defendants  Walter  F.  Johnson  and  Esther  R.  Johnson. 

It  is  further  ordered,  adjudged  and  decreed  that  upon  the  payment 
of  the  said  sums  as  herein  provided  that  the  said  land  contract  from 
Frank  L.  Clark  and  Hannah  Clark,  his  wife,  to  Abner  T.  Klees  and 
Mabel  Klees,  his  wife,  which  contract  was  assigned  to  the  said  Walter 
F.  Johnson,  shall  be  decreed  to  be  a  valuable  contract  for  the  sale 
of  the  entire  eighty  (80)  feet  and  the  said  defendant,  Walter  F.  Johnson, 
shall  be  entitled  to  a  conveyance  of  the  said  eighty  (80)  feet  according 


R  203]  REFORMATION  OF  LAND  CONTRACTS  469 

to  the  terms  of  said  contract  and   paying  the  amounts  herein  decreed 
to  be  paid. 

Kleber  P.  Rockwell, 

Circuit  Judge. 
Countersigned: 

Floyd  B.  Babcock, 
County  Clerk. 

(i)  Authorities  Cited  by  Defendants  Johnson,  Brief  for  Defendant. — 
1.  The  defendants  Johnson  contend  that  plaintiffs  have  an  adequate 
remedy  at  law. 

Where  a  contract  has  passed  into  the  hands  of  a  bona  fide  purchaser 
for  value,  it  cannot  be  reformed  or  corrected  by  a  court  of  equity;  Dort 
v.  Barbour,  32  Mich.  267;  Toll  v.  Davenport,  74  Mich.  386;  Culbertson 
v.  Whitbeck  Co.,  92  Mich.  469;  Robertson  v.  Smith,  191  Mich.  660;  34 
Cyc.  956-957. 

2.  He  who  comes  into  equity  must  come  with  clean  hands. 

The  court  found  that  plaintiff  was  aware  of  the  mistake  in  the  contract 

In  33  Cyc.  948,  the  rule  is  settled  as  follows: 

"Against  the  party  seeking  reformation,  broadly  speaking,  it  is  a 
good  defense  to  set  up  and  prove  that  the  mistake  charged  was  due  to 
the  complaining  parties'  own  negligence.  Troops  v.  Snyder,  70  Ind.  554; 
Wood  v.  Patterson,  4  Md.  Ch.  335;  Taylor  v.  Fleet,  4  Barb.  95. 

"The  mistakes  which  equity  will  correct  are  not  those  which  might 
have  been  avoided  by  common  and  ordinary  care,  which  are  the  results 
of  negligence."  Young  v.  McGown,  68  Me.  61;  Graham  v.  Berryman,  19 
N.  J.  Eq.  35. 

3.  Cannot  vary  written  contract  by  parol  evidence. 

It  was  sought  in  this  case  to  show  by  parol  evidence  that  the  con- 
tract should  have  read  40  feet  instead  of  80  feet. 

Where  mutual  mistake  is  proven,  parol  evidence  is  admissible,  but 
here  the  mistake  proven  is  one  between  the  scrivener,  and  the  plaintiff 
Johnson  was  not  a  party  to  the  mistake.  The  mistake  lacked  the  element 
of  mutuality.    Therefore,  the  rule  and  not  the  exception  applies  here. 

It  is  needless  to  cite  cases  in  support  of  this  rule. 

4.  Plaintiffs  estopped  from  securing  relief  from  defendant  Johnson. 

Plaintiff  stood  by  and  permitted  the  contract  to  be  assigned  by  John- 
son to  Rogerson,  knowing  of  the  mistake,  without  saying  a  word  for 
three  months. 

All  the  elements  of  estoppel  are  present  herein,  (a)  the  knowledge: 
(b),  the  silence,  while  the  rights  of  innocent  parties  are  being  affected; 
(c)  the  plain  duty  to  speak;  (d)  the  failure  to  do  so.  Pearson  v.  Hardin, 
95  Mich.  360;   Mich.  Paneling  Co.  v.  Pearsell,  38  Mich.  475. 

5.  Laches. 

Plaintiffs  became  aware  of  the  mistake  in  the  land  contract  at  the 
time  they  sold  to  Klees  in  October,  1916,  and  made  no  objection  to  the 


470  THE  LAW  0F  LAND  CONTRACTS  [§  203 

assignment  by  Klees  to  Johnson  in  November,  1917,  and  took  no  legal 
steps  to  rectify  this  error  until  August,  1918. 

In  Grymes  v.  Sanders,  93  U.  S.  55,  the  court  said  : 

"The  subsequent  conduct  of  the  appellees  shows  that  the  mistake  had 
no  effect  upon  their  minds  for  a  considerable  period  after  its  discovery, 
and  then  it  seems  to  have  been  rather  a  pretext  than  a  cause. 

"Mistake,  to  be  available,  in  equity,  must  not  have  arisen  from  neg- 
ligence, where  the  means  of  knowledge  were  easily  accessible.  The  party 
complaining  must  have  exercised  at  least  the  degree  of  diligence  'which 
may  be  fairly  expected  from  a  reasonable  person.'  "  Kerr  on  Fraud  and 
Mistake,  407;  Watts  v.  Spokane  Ry.  Co.,  171  Pac.  901. 

(j)  Authorities  Cited  by  Plaintiff — Brief  for  Plaintiff. — All  parties  know 
that  only  40  feet  were  to  be  conveyed  and  the  following  applies: 

"To  justify  the  reformation  of  a  written  contract  upon  the  ground 
of  mistake  in  drafting  it,  the  alleged  mistake  must  be  proven  by  clear 
and  satisfactory  evidence  and  must  be  mutual,  common  to  both  parties 
to  the  contract."  Kinyon  v.  Cunningham,  146  Mich.  430;  Dralke  v.  Boylon, 
160  Mich.  522;  Dillie  v.  Longwell,  163  Mich.  439. 

The  right  of  an  individual  to  have  an  instrument  reformed  when  a 
mistake  has  been  clearly  shown,  cannot  be  questioned  in  this  state. 
Dweight  v.  Thler,  49  Mich.  614;  Probett  v.  Walters,  70  Mich.  437;  West 
v.  Mohoney,  86  Mich.  121. 

LABRANCHE  v.  PERRON,  209  Mich.  239— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Exhibit  "A"  of  Plaintiff. 

(d)  Amendments  to  Bill  of  Complaint. 

(e)  Answer  and  Cross-Bill. 

(f)  Answer  of  Plaintiff  to  Cross-Bill. 

(g)  Decree. 

(h)  Authorities  Cited  by  Defendant.     Brief  for  Defendant, 
(i)  Authorities  Cited  by  Plaintiff.     Brief  for  Plaintiff. 

LABRANCHE  v.  PERRON,  209  Mich.  239— 

(a)  Brief  Statement  of  Fact. — A  bill  of  complaint  was  filed  to  reform 
a  land  contract  executed  to  secure  to  the  vendees  an  undivided  one-halt 
interest  for  money  advanced  to  plaintiff  to  make  the  purchase,  the 
vendees  having  subsequently  sold  to  defendants  the  entire  property. 
From  a  decree  correcting  the  instrument  to  make  it  express  the  actual 
agreement,  the  defendant  appealed,  which  decree  was  affirmed. 


s  203  I         REFORMATION  OF  LAND  CONTRACTS         471 

(b)   Bill  of  Complaint  — 

STATE  OF  MICHIGAN 
In  the  Circuit  Court  for  the  County  of  Menominee 

In  Chancery 
Louis  LaBranche, 

Plaintiff, 

Menazip  Perron, 

Defendant. 

To  the  Circuit  Court  for  the  County  of  Menominee 

In  Chancery 
Louis   LaBranche,    plaintiff   herein,  brings   this,   his   bill   of   complaint, 
against   Menazip   Perron,   defendant   herein,   and   thereupon   respectfully 
shows  unto  this  court: 

1.  That  on,  to-wit,  the  25th  day  of  November,  A.  D.  1913,  one  John 
Gasman  was  the  owner  in  fee  simple  of  the  following  described  lands 
situated  and  being  in  the  County  of  Menominee  and  State  of  Michigan, 
namely: 

The  northeast  quarter  and  the  west  half  of  the  southeast  quarter,  all 
in  section  twenty-six,  the  northwest  quarter  of  the  northeast  quarter, 
the  south  half  of  the  northeast  quarter,  the  south  half  of  the  northwest 
quarter,  all  in  section  thirty-six,  the  northwest  quarter  of  the  southeast 
quarter  and  the  southeast  quarter  of  the  southwest  quarter  all  in  sec- 
tion twenty-two  all  in  township  forty  north,  range  twenty-six  west,  con- 
taining five  hundred  and  twenty  acres,  more  or  less,  according  to  the 
government  survey  thereof,  excepting  and  reserving  all  mineral  rights, 
to  enter  and  remove  same  without  cost  to  the  said  Louis  LaBranche. 

2.  That  the  plaintiff,  at  such  time  and  for  many  years  prior  thereto 
and  ever  since,  has  been  in  the  business  of  taking  out  forest  products, 
and  in  order  to  provide  himself  with  land  and  timber  for  such  operations, 
made  and  entered  into  a  contract  with  said  John  Gasman  whereby  the 
plaintiff  agreed  to  buy  and  the  said  John  Gasman  agreed  to  sell  to  the 
plaintiff,  the  aforesaid  lands  and  timber  thereon,  at  a  consideration  of 
fourteen  thousand  five  hundred  dollars. 

3.  That  the  plaintiff  at  such  time  did  not  have  sufficient  moneys  with 
which  to  make  the  first  payment  required  to  be  made  on  said  contract 
and  thereupon  applied  to  one  Celestine  Boissonneault  and  one  Elgina9 
Boissonneault  for  them  to  advance  the  sum  of  money  required  for  the 
said  first  payment,  namely,  the  sum  of  seven  thousand  dollars. 

4.  That  the  said  Celestine  Boissonneault  and  Elginas  Boissoneault 
thereupon  advanced  the  sum  of  seven  thousand  dollars,  and  it  was  un- 
derstood by  and  between  the  plaintiff  and  the  said  Celestine  and  Elginas 
Boissoneault,  that  the  plaintiff  would  go  on  with  logging  operations  on 
said  lands  and  that  the  net  proceeds  from  said  operations  would  be 
divided  between  the  parties,  namely,  after  the  payment  of  the  expenses 
of  taking  out  said  timber,  the  plaintiff  would  be  entitled  to  one-half  of 


472  THE  LAW  OF  LAND  CONTRACTS  [§  203 

the  moneys  remaining  and  the  said  Celestine  and  Elginas  Boissonneault 
would  be  entitled  to  the  other  half  of  said  moneys;  and  the  plaintiff 
would  retain  an  undivided  half  interest  in  said  lands  and  the  said  Celes- 
tine and  Elginas  Boissonneault  would  be  entitled  to  the  other  undivided 
one-half  thereof. 

5.  That  in  order  that  the  said  Celestine  and  Elginas  Boissonneault 
would  have  proper  written  evidence  showing  such  payment  to  have 
been  made  by  them  and  in  order  that  they  might  be  properly  secured  for 
the  moneys  so  advanced  by  them,  the  aforesaid  contract  given  by  the 
said  John  Gasman  to  the  plaintiff  was  assigned  and  set  over  to  the 
said  Celestine  and  Elginas  Boissonneault  by  manner  of  making  a  dupli- 
cate of  said  contract,  except  that  in  said  duplicate,  the  plaintiff  was 
named  as  the  first  party  and  the  said  Celestine  and  Elginas  Boisson- 
neault were  named  as  second  parties,  which  said  duplicate  was  duly 
executed  by  the  parties  thereto,  and  is  made  a  part  hereof  as  plaintiff's 
Exhibit  "A." 

6.  That  for  a  number  of  years  the  plaintiff  continued  operations  on 
said  land  in  pursuance  of  aforesaid  verbal  agreement  and  in  accordance 
therewith  made  division  of  the  proceeds  as  agreed  between  the  parties. 

7.  That  said  lands  are  valuable  for  farming  purposes  and  there  is 
still  remaining  thereon  valuable  forest  products  to  be  taken  out,  and 
that  the  plaintiff  always  has  been  and  still  is  desirous  of  carrying  out 
his  part  of  the  agreement. 

8.  That  the  contract  referred  to  as  having  been  executed  by  the  plain- 
tiff to  Celestine  and  Elginas  Boissonneault  was  recorded  in  the  office 
of  the  register  of  deeds  of  Menominee  County,  Michigan,  on  the  twenty- 
fourth  day  of  December,  1917,  in  Liber  "F"  of  miscellaneous  records,  on 
pages  421  and  422  thereof. 

9.  That  recently,  to-wit,  on  the  26th  day  of  August,  A.  D.  1918,  the 
said  Celestine  and  Elginas  Boissonneault  transferred  and  conveyed  by 
quit-claim  deed  to  the  defendant  Menazip  Perron  all  their  right,  title 
and  interest  in  and  to  the  land  and  premises  described  in  said  land  con- 
tract, which  deed  was  recorded  in  the  office  of  the  Register  of  Deeds 
of  Menominee  County,  Michigan,  in  Liber  95  of  deeds  on  page  531  thereof 
on  the  27th  day  of  August,  A.  D.  1918. 

10.  That  the  said  defendant,  Menazip  Perron  well  knew  that  the  said 
contract  was  executed  by  the  plaintiff  to  Celestine  and  Elginas  Boisson- 
neault only  as  security  for  the  sum  of  moneys  advanced  by  said  Celes- 
tine and  Elginas  Boissonneault,  and  that  the  said  defendant,  Menazip 
Perron  well  knew  of  the  aforesaid  agreement  between  the  plaintiff  and 
the  said  Celestine  and  Elginas  Boissonneault  relative  to  the  logging  of 
said  lands. 

11.  That  the  said  Menazip  Perron  has  now  gone  into  possession  of 
said  lands  and  has  begun  and  threatens  to  cut  and  remove  all  the  re- 
maining timber  thereon,  claiming  to  be  the  sole  owner  thereof,  and 
that  the  plaintiff's  only  interest  in  said  land  and  timber  is  that  he  may 


§203]  REFORMATION  OF  LAND  CONTRACTS  473 

be  entitled  to  receive  the  balance  owing  on  said  contract  according  to  the 
import  thereof,  and  that  the  plaintiff  fears  and  has  good  reason  to  believe 
that  the  said  Menazip  Perron  will  execute  the  said  threats  unless  re- 
strained by  the  order  of  this  court. 

12.  That  the  timber  remaining  on  said  land  is  of  much  greater  value 
than  the  amount  required  to  now  pay  the  balance  due  and  owing  on 
the  aforesaid  contract  according  to  the  import  thereof,  namely  such  dif- 
ference in  value  now  amounts  to  more  than  the  sum  of  five  thousand 
dollars,  and  the  plaintiff  is  justly  apprehensive  of  the  loss  thereof  unless 
the  said  Menazip  Perron  be  restrained  by  the  order  of  this  court  from 
continuing  to  commit  said  waste  on  said  land  and  premises. 

13.  That  because  of  the  character  of  the  timber  (being  hardwood 
products)  present  war  and  condition  of  labor  market,  the  cost  of  sup- 
plies and  equipment,  the  present  season  is  not  an  opportune  time  for 
the  cutting  and  removing  of  said  timber  and  the  plaintiff  is  justly 
apprehensive  that  because  of  the  speculative  and  uncertain  outlook  and 
the  present  embargo  on  lumber  products  that  he  will  suffer  an  irrepar- 
able loss  if  the  said  Menazip  Perron  continues  to  cut  and  remove  the 
said  timber. 

Wherefore  the  plaintiff  being  without  remedy  in  the  premises,  except 
in  a  court  of  equity,  prays: 

(a)  That  the  said  defendants  may  each  be  required  to  make  true  an- 
swers to  each  and  every  allegation  herein  contained  but  not  under  oath 
(the  answer  under  oath  being  hereby  waived). 

(b)  That  the  said  Menazip  Perron  upon  the  filing  of  this  bill  of  com- 
plaint be  restrained  by  the  order  of  this  court  during  the  pendency  of 
this  suit,  from  cutting  or  logging  upon  or  removing  any  of  the  timber 
from  said  lands  and  that  likewise  his  agents,  attorneys,  representatives 
or  assigns  be  also  so  restrained,  and  that  upon  the  final  hearing  of  this 
cause  each  of  them  be  perpetually  restrained. 

(c)  That  the  aforesaid  contract  made  and  executed  by  the  plaintiff  to 
Celestine  and  Elginas  Boissonneault  be  reformed  so  as  to  express  the 
true  intent  of  the  parties. 

(d)  That  there  may  be  a  division  and  partition  of  the  said  land  and 
premises  by  and  between  the  parties  to  this  action  according  to  their 
respective  interests  in  said  lands  and  timber. 

(e)  That  the  plaintiff  may  have  such  other  or  such  further  relief  in 
the  premises  as  equity  may  require  and  as  to  this  court  may  seem  best. 

Louis  LaBranche, 

John  H.  O'Hara,  Plaintiff 

Attorney  for  plaintiff, 

Business  address:   Menominee,  Mich. 

State  of  Michigan,  1 

>  ss 
County  of  Menominee,  f 

Louis   LaBranche,   being   first   duly    sworn,   deposes   and    says   that   he 

has  read  the  foregoing  bill  of  complaint  signed  by  him  and  knows  the 


474  THE  LAW  OF  LAND  CONTRACTS  [§203 

contents  thereof  and  that  the  same  is  true  of  his  own  knowledge,  except 
as  to  matters  therein  stated  upon  information  and  belief,  and  as  to  these 
matters  he  believes  it  to  be  true. 

Subscribed  and  sworn  to  before  me  this  10th  day  of  December,  A.  D. 

1918. 

J.  Chas.  Guay. 
Notary  Public, 
Menominee  County  Michigan. 

My  commission  Expires  May  18,  1921. 

(c)  Exhibit  "A." — Of  Plaintiff. — This  contract,  made  this  twenty-sixth 
day  of  November,  in  the  year  one  thousand  nine  hundred  and  thirteen, 
between  Louis  LaBranche,  of  the  Township  of  Spaulding,  County  of  Me- 
nominee, State  of  Michigan,  party  of  the  first  part,  and  Celestine  and 
Elginas  Boissonneault,  of  the  same  township,  same  county  and  same 
state,  parties  of  the  second  part, 

Witnesseth,  that  the  said  party  of  the  first  part,  in  consideration  of 
the  sum  of  fourteen  thousand  and  five  hundred  dollars,  to  be  duly  paid 
as  hereinafter  specified,  hereby  agrees  to  sell  and  convey  to  the  said 
parties  of  the  second  part,  all  of  the  following  described  land,  situated 
in  the  township  of  Spalding,  County  of  Menominee,   State  of  Michigan, 

The  northeast  quarter  (NEi)  and  the  west  half  of  the  southeast  quar- 
ter (WJ  of  SEJ)  all  in  section  twenty-six  (26),  the  northwest  quarter  of 
the  northeast  quarter  (NWJ  of  NEJ),  the  south  half  of  the  northwest 
quarter  (Sh  of  NWJ)  all  in  section  thirty-six  (36),  the  northwest  quarter 
of  the  southeast  quarter  (NWi  of  SEJ)  and  the  southeast  quarter  of  the 
southwest  quarter  (SE|  of  SWJ),  all  in  section  twenty-two  (22)  all  in 
township  forty  (40)  north  of  range  twenty-six  (26)  west,  containing  five 
hundred  and  twenty  (520)  acres  more  or  less  according  to  the  govern- 
ment survey  thereof,  excepting  and  reserving  all  mineral  rights,  to 
enter  and  remove  same  without  cost  to  said  Louis  LaBranche,  for  the 
sum  of  fourteen  thousand  five  hundred  ($14,500.00)  dollars  which  said  par- 
ties of  the  second  part  agree  to  pay  to  the  said  party  of  the  first  part  as 
follows:  Seven  thousand  ($7,000.00)  dollars  on  the  execution  and  delivery 
of  this  contract,  and  the  receipt  whereof  is  hereby  acknowledged,  and 
thirty-seven  hundred  and  fifty  dollars  ($3700.50)  one  year  from  the  date 
hereof,  and  thirty-seven  hundred  and  fifty  dollars  ($3700.50)  two  years 
from  the  date  hereof  with  interest  on  all  sums  at  any  time  unpaid,  at 
the  rate  of  seven  per  cent,  per  annum,  interest  payable  annually. 

Said  parties  of  the  second  part  also  agree  to  pay  in  due  season  all 
taxes,  and  assessments,  extraordinary,  that  shall  be  taxed  or  assessed 
on  said  land  including  the  taxes  thereon  for  the  year  1913. 

It  is  further  mutually  agreed,  by  the  parties  hereon, -that  the  party 
of  the  first  part,  on  receiving  payment  in  full  of  the  said  principal  and 
interest  at  the  times  and  in  the  manner  above  mentioned,  and  of  all 
other  sums  chargeable  in  his  favor  hereon,  shall  and  will  at  his  own 
proper  cost  and  expense,  execute  and  deliver  to  the  said  parties  of  the 
second  part  a  good  and  sufficient  warranty  deed  of  said  above  described 


§2031 


REFORMATION  OF  LAND  CONTRACTS         475 


lands,  free  and  clear  of  and  from  all  liens  and  encumbrances,  except 
such  as  may  have  accrued  on  said  lands  subsequent  to  the  date  hereof, 
by  or  through  the  acts  or  negligence  of  said  parties  of  the  second  part. 
It  is  further  mutually  agreed,  by  said  parties  that  the  said  Louis 
LaBranche,  party  of  the  first  part,  shall,  and  hereby  does  have  a  lien 
upon  all  timber  which  shall  at  any  time  be  cut,  manufactured  or  removed 
from  said  land  or  premises  and  that  the  said  lien  shall  follow  and  con- 
tinue upon  said  timber  at  all  times  and  places  to  which  the  same  may 
be  removed  and  shall  form  and  be  a  part  of  his  securities  under  this 
contract  and  the  deed  of  said  land  which  is  held  by  and  in  the  name 
of  said  Louis  LaBranche. 

It  is  further  mutually  agreed,  by  said  parties  that  if  all  of  the  timber, 
or  the  greater  part  thereof  shall  be  cut  and  removed  from  said  land  and 
premises  before  the  amount  secured  hereby  is  fully  paid  that  the  said 
Louis  LaBranche  shall  be  fully  paid  out  of  and  from  the  proceeds  of 
the  sale  of  said  timber  and  that  after  the  said  party  of  the  first  part 
shall  receive  payment  in  full  under  this  contract  his  liens  upon  said 
land  and  upon  said  timber  shall  cease  and  be  null  and  void  and  that  he 
shall  execute  and  deliver  to  the  said  Boissonneault  Brothers  a  warranty 
deed,  as  aforesaid. 

This  contract  and  deed  held  by  the  said  Louis  LaBranche,  is  held 
by  him  as  collateral  security  to  two  promissory  notes  of  thirty-seven 
hundred  and  fifty  dollars  ($3750.00)  each  executed  by  the  said  Boisson- 
neault Brothers  and  bearing  even  date  hereof. 

It  is  also  agreed,  by  the  parties  hereto  that  if  the  said  parties  of  the 
second  part  shall  fail  to  perform  this  contract  or  any  part  of  the  same, 
the  said  party  of  the  first  part  shall,  immediately  after  such  failure, 
have  the  right  to  declare  this  contract  void,  and  to  retain  whatever  may 
have  been  paid  hereon,  and  all  improvements  that  may  have  been  made 
on  said  land,  as  stipulated  damages  for  nonperformance  of  this  con- 
tract, and  may  consider  and  treat  said  parties  of  the  second  part  as 
his  tenants  holding  over  without  permission,  and  may  take  immediate 
possession  of  said  land,  and  remove  said  parties  of  the  second  part 
therefrom. 

And  it  is  agreed,  that  the  stipulations  herein  contained  are  to  apply 
to  and  bind  the  heirs,  executors,  administrators  and  assigns  of  the  re- 
spective parties  hereto. 

In  witness  whereof,  the  parties  hereto  have  hereunto  set  their  hands 
and  seals,  the  day  and  year  first  above  mentioned. 

Signed,    sealed    and    delivered    in    presence    of    Eugine    Ethier,    Louis 

Belanger. 

Louis  LaBranche,  (Seal) 

Celestine  Boissonneault,        (Seal) 

Elginas  Boissonneault.  (Seal) 


476  THE  LAW  OF  LAND  CONTRACTS  [  §  203 

State  of  Michigan,  | 

County  of  Menominee,  \ 

On  this  twenty-sixth  day  of  November  in  the  year  nineteen  hundred 
and  thirteen,  before  me,  the  subscriber,  a  justice  of  the  peace  in  and 
for  said  county,  personally  came  Louis  LaBranche,  Clestine  Boisson- 
neault  and  Elginas  Boissonneault,  to  me  known  to  be  the  persons  named 
in  and  who  executed  the  within  instrument  as  vendors,  and  each  acknowl- 
edged that  he  executed  the  same  as  his  free  act  and  deed  for  the  pur- 
poses therein  mentioned. 

Louis  Belanger, 

Justice  of  the  Peace. 

(d)  Amendments  to  Bill  of  Complaint.— (Caption.)  Now  comes  the 
above  named  plaintiff  and  for  amendments  to  his  bill  of  complaint  to 
meet  the  proofs  presented  at  the  hearing  of  said  cause,  and  to  present 
to  the  court  matters  arising  subsequent  to  the  filing  of  said  bill,  further 
alleges: 

First.  As  an  additional  sentence  to  paragraph  numbered  four  of  the 
bill  of  complaint  heretofore  filed  in  said  cause,  the  following: 

That  the  plaintiff  and  the  said  Celestine  and  Elginas  Boissonneault 
were  partners  with  the  plaintiff  and  fiduciary  relations  existed  between 
the  parties  in  all  things  pertaining  to  the  carrying  on  of  said  joint  enter- 
prise relative  to  said  lands. 

Second.  For  and  as  an  additional  allegation  to  paragraph  numbered 
five  of  the  said  bill  of  complaint  heretofore  filed  in  said  cause,  the 
following: 

That  is  was  mutually  intended  and  understood  by  and  between  the 
parties  that  said  Exhibit  "A"  merely  stand  as  evidence  of  the  fact  that 
the  said  Celestine  and  Elginas  Boissonneault  had  paid  seven  thousand 
dollars  as  and  for  their  share  of  the  purchase  price  of  said  lands  and 
further  so  that  the  said  Celestine  and  Elginas  Boissonneault  would  have 
a  writing  that  they  might  refer  to  in  order  to  thereafter  know  and  be 
kept  informed  as  to  the  details  of  the  land  contract  heretofore  executed 
by  John  Gasman  to  the  plaintiff.  That  said  Exhibit  "A"  was  executed 
by  the  plaintiff  and  delivered  to  the  said  Celestine  and  Elginas  Boisson- 
neault because  and  in  reliance  upon  the  fiduciary  relations  existing  by 
and  between  the  plaintiff  and  the  said  Boissonneaults  concerning  said 
joint  and  partnership  enterprise,  and  it  was  at  all  times  mutually  re- 
served and  understood  that  the  plaintiff  had  an  undivided  half  interest 
in  the  purchase  of  said  lands  for  which  said  half  interest  the  plaintiff 
was  to  pay  the  remaining  payments  to  be  made  as  evidenced  by  the 
said  contract  executed  by  John  Gasman  to  the  plaintiff.  That  it  was 
mutually  intended  by  the  execution  of  said  Exhibit  "A"  that  the  Bois- 
sonneaults have  a  lien  upon  all  of  said  land  for  moneys  advanced  by 
them  to  the  end  that  when  such  partnership  logging  operations  cease 
between  the  parties  the  said  Boissonneaults,  for  the  said  moneys  paid 
by  them,  be  given  the  proper  indenture  showing  them  to  be  owners  of 
one-half  of  said  lands,  and  to  the  end  that  the  said  Boissonneaults  have 


§2031 


REFORMATION  OF  LAND  CONTRACTS  477 


a  lien  on  the  whole  contract  for  the  purchase  of  said  lands  until  the 
plaintiff  paid  John  Gasman  the  remaining  sum  due  him  thereon.  That  it 
was  never  intended  that  the  said  Celestine  and  Elginas  Boissonneault 
were  contract  purchasers  of  anything  more  than  an  undivided  one-half 
of  said  lands. 

Third.  For  and  to  stand  in  lieu  and  place  of  paragraph  numbered  ten 
of  the  said  bill  of  complaint  heretofore  filed  in  said  cause,  the  following: 

That  the  said  defendant,  Menazip  Perron,  at  all  times  well  knew  of 
the  relationship  and  rights  existing  between  the  plaintiff  and  said  Celes- 
tine and  Elginas  Boissonneault  concerning  said  lands  said  contract  of  the 
plaintiff  to  the  Boissonneaults. 

Fourth.  For  an  additional  paragraph  to  said  bill  of  complaint  and 
to  present  matters  arising  subsequent  to  the  filing  of  said  bill  of  com- 
plaint, the  following: 

(a)  That  the  plaintiff  has  paid  to  said  John  Gasman  all  the  purchase 
price  of  said  lands  pursuant  to  said  contract  and  has  received  from  the 
said  John  Gasman  and  his  wife,  as  grantors,  to  the  plaintiff  as  grantee, 
a  warranty  deed,   conveying  said  lands  to  the  plaintiff,  which   deed   is 

dated ,   is   duly   witnessed   and   acknowledged   and    entitled    to 

record  in  the  office  of  the  Register  of  Deeds,  which  deed  the  plaintiff  is 
ready  to  produce  as  the  court  may  direct. 

(b)  That  subsequent  to  the  26th  day  of  August,  1918,  the  defendant 
Menazip  Perron  has  gone  into  possession  of  said  lands  and  has  cut  and 
removed  a  large  quantity  of  timber  therefrom,  has  logged  upon  and 
cut  timber  thereon  during  all  the  winter  of  1919  and  is  still  engaged 
in  cutting  and  removing  timber  therefrom,  and  declines  and  refuses 
to  account  to  the  plaintiff  for  any  share  thereof. 

(c)  That  plaintiff  has  applied  to  the  said  Menazip  Parron  for  a  divi- 
sion and  partition  of  said  lands  and  the  said  Menazip  Perron  declines 
and  refuses  to  come  to  any  agreement  in  reference  thereto. 

Wherefore,  the  plaintiff,  being  without  remedy  in  the  premises  except 
in  a  court  of  equity,  further  prays: 

1.  That  the  defendant  Menazip  Perron  be  required  to  true  answer 
make  to  the  additional  matters  hereinbefore  set  forth,  but  not  under 
oath   (the  answer  under  oath  being  hereby  waived). 

2.  That  the  contract  executed  by  the  plaintiff  to  Celestine  and  Elginas 
Boissonneault  be  cancelled  and  held  for  naught. 

3.  That  a  partition  and  division  of  said  lands  between  the  plaintiff 
and  the  defendant  be  decreed  and  that  reference  be  made  to  a  circuit 
court  commissioner  to  inquire  into  the  situation  of  the  premises,  and 
to  report  whether  such  premises,  or  any  part  of  them,  are  so  circum- 
stanced that  a  partition  and  division  thereof  amongst  the  owners  can 
be  made  by  meets  and  bounds,  and  to  take  testimony  concerning  the 
timber  taken  from  said  lands  to  the  end  that  a  just  and  equitable  divi- 
sion be  made. 

John  J.  O'Hara, 

George  Barstow,  Attorney  for  plaintiff. 

Of  counsel. 


478  THE  LAW  OF  LAND  CONTRACTS  [§  203 

(e)  Answer  and  Cross-Bill. —  (Caption.)  The  answer  of  Menazip  Perron, 
the  above  named  defendant,  to  the  bill  of  complaint  hereinbefore  filed 
in  said  cause  against  this  defendant,  respectfully  shows  unto  the  court 
as  follows: 

1.  That  defendant  admits  the  allegations  contained  in  paragraph  one 
of  the  bill  of  complaint. 

2.  Answering  paragraph  two  of  the  bill  of  complaint,  this  defendant 
admits  that  the  plaintiff  entered  into  the  contract  with  John  Gasman 
therein  set  forth  and  for  the  consideration  therein  named,  but  this 
defendant  has  no  knowledge  of  the  business  reasons  which  prompted 
the  plaintiff  to  enter  into  the  said  contract. 

3.  Answering  paragraph  three  of  the  bill  of  complaint,  this  defendant 
has  no  knowledge  of  the  matters  therein  set  forth  and  alleged,  suffi- 
cient to  form  a  belief,  and  therefore  leaves  the  plaintiff  to  his  proofs 
as  to  those  matters. 

4.  Answering  paragraph  four  of  the  bill  of  complaint,  this  defend- 
ant has  no  knowledge  of  the  matters  therein  contained  sufficient  to 
form  a  belief,  and  therefore  leaves  the  plaintiff  to  his  proofs  as  to  those 
matters. 

5.  Answering  paragraph  five  of  the  bill  of  complaint,  this  defendant 
admits  that  the  plaintiff  made  and  executed  the  land  contract  set 
forth  in  his  Exhibit  "A,"  but  denies  that  he  has  any  knowledge  that  in 
the  making  of  said  contract  any  other  legal  effect  was  intended  by  the 
parties  to  the  said  contract  than  that  expressed  in  the  writing;  and 
this  defendant,  further  answering  paragraph  five  of  the  bill  of  complaint, 
denies  that  the  plaintiff  may,  as  against  this  defendant,  claim  that  the 
legal  effect  of  the  said  land  contract  was  or  is  other  than  shown  by  the 
words  of  said  contract. 

6.  Answering  paragraph  six  of  the  bill  of  complaint,  this  defendant 
has  no  knowledge  of  the  allegations  therein  contained  sufficient  to 
enable  him  to  form  a  belief,  and  therefore  leaves  the  plaintiff  to  his 
proofs,  but  denies  that  proof  of  the  matters  therein  contained  will  have 
any  tendency  to  entitle  him  to  the  relief  prayed  in  his  bill  of  complaint 
or  to  any  other  relief. 

7.  Answering  paragraph  seven  of  the  bill  of  complaint,  defendant 
admits  that  the  lands  in  controversy  are  valuable  for  farming  purposes 
and  for  forest  products,  but  as  to  the  desire  of  the  plaintiff  to  carry  out 
his  part  of  any  agreement  other  than  expressed  in  his  written  con- 
tract, this  defendant  has  no  knowledge  and  denies  the  validity  of  any 
other  agreement. 

8.  Defendant  admits  the  allegations  contained  in  paragraph  eight  of 
the  bill  of  complaint. 

9.  Answering  paragraph  nine  of  the  bill  of  complaint,  defendant 
admits  that  he  purchased  all  of  the  right,  title  and  interest  of  said 
Celestine  Boissonneault  and  Elginas  Boissonneault  in  and  to  the  lands 


fi  203]  REFORMATION  OF  LAND  CONTRACTS  479 

described  in  the  bill  of  complaint,  and  further  says  that  he  paid  them 
approximately  nine  thousand  dollars  for  their  said  interest. 

10.  Answering  paragraph  ten  of  the  bill  of  complaint,  this  defendant 
denies  that  he  has  any  knowledge  of  any  understanding,  arrangement 
or  agreement  between  the  plaintiff  and  the  said  Celestine  and  Elginas 
Boissonneault  which  was  in  any  wise  at  variance  with  or  in  contra- 
diction of  the  terms  expressed  in  the  written  contract  between  the 
plaintiff  and  the  said  Celestine  and  Elginas  Boissonneault,  as  set  forth 
in  plaintiff's  Exhibit  "A."  Further  answering  paragraph  ten  of  the 
bill  of  complaint,  this  defendant  says  that  he  purchased  the  interest 
of  Celestine  and  Elginas  Boissonneault  in  good  faith,  relying  upon  the 
said  contract  for  the  purchase  of  the  said  lands  as  set  forth  in  plaintiff's 
Exhibit  "A"  as  representing  the  true  relation  between  the  plaintiff  and 
the  said  Celestine  and  Elginas  Boissonneault  with  reference  to  said 
lands;  further  answering  paragraph  ten  of  the  bill  of  complaint,  this 
defendant  says  that  his  negotiations  with  the  said  Celestine  and  Elginas 
Boissonneault  for  the  purchase  of  their  interest  in  said  lands  extended 
over  a  period  of  several  weeks,  and  that  the  plaintiff  was  fully  cognizant 
of  said  negotiations;  that  the  said  plaintiff,  knowing  of  the  said  nego- 
tiations, made  no  objection  thereto  to  this  defendant,  neither  did  the 
plaintiff  tell  this  defendant  that  he  had  any  other  interest  in  said  premises 
than  that  set  forth  in  the  contract  between  himself  and  the  said  John 
Gasman,  and  the  other  contract  set  forth  in  plaintiff's  Exhibit  "A." 
Further  answering  paragraph  ten  of  the  bill  of  complaint,  defendant 
says  that  after  purchasing  the  interest  of  the  said  Celestine  and  Elginas 
Boissonneault,  and  paying  them  approximately  nine  thousand  dollars 
therefor,  this  defendant  went  to  the  plaintiff  and  requested  him  to  make 
a  statement  of  the  amount  due  him  under  the  contract  for  the  pur- 
chase of  said  lands  and  advised  the  plaintiff  that  he  was  ready  and 
willing  to  pay  him  any  amount  legally  his  due  thereunder;  that  at  that 
time  the  plaintiff  made  no  claim  against  him  or  that  he  had  any  en- 
forceable interest  in  said  lands  except  as  shown  by  his  said  contracts. 
That  this  defendant,  with  full  knowledge  of  the  plaintiff,  thereupon  com- 
menced logging  operations  on  said  lands  and  to  that  end  incurred  large 
expense  in  building  camps,  cutting  roads  and  getting  out  timber  and 
forest  products;  that  the  defendant  sold  and  furnished  defendant  with 
lumber  with  which  to  build  his  camps  upon  said  lands,  well  knowing 
that  the  lumber  so  sold  was  designed  for  the  construction  of  such  camps; 
that  between  the  time  of  making  the  purchase  of  the  said  Celestine  and 
Elginas  Boissonneault  in  and  to  said  lands,  this  defendant  has  expended, 
in  addition  to  the  purchase  price  aforesaid,  the  sum  of  approximately 
sixteen  thousand  dollars;  that  such  sum  was  expended  with  the  full 
knowledge  of  the  plaintiff  and  without  any  claim  or  objection  on  his 
part;  that  this  defendant  has  now  fifty  men  employed  in  taking  out 
forest  products  upon  said  lands  and  that  should  he  be  compelled  at 
this  time  to  suspend  his  said  logging  operations  he  would  sustain  great 
and    irreparable   loss    in   the   premises;    that    the    plaintiff    is    financially 


480  THE  LAW  OF  LAND  CONTRACTS  [§  203 

irresponsible  and  the  damages  that  would  be  sustained  by  this  defend- 
ant, in  the  event  of  a  suspension  of  his  said  logging  operations,  could 
not  be  recovered  by  the  defendant.  Further  answering  paragraph  ten  of 
the  bill  of  complaint,  this  defendant  shows  that  the  legal  title  to  said 
lands  is  in  John  Gasman ;  that  he  now  is  and  always  has  been  ready  and 
willing  to  pay  the  plaintiff  all  moneys  that  may  be  due  him  under  the 
said  contract  as  set  forth  in  his  Exhibit  "A"  upon  the  tender  to  this 
defendant  by  the  plaintiff  of  a  good  title  to  said  lands;  that  the  plaintiff 
has  not  paid  the  full  purchase  price  of  said  lands,  although  payment 
under  his  contract  with  the  said  John  Gasman  is  long  past  due.  By 
reason  of  the  laches  herein  set  forth  this  defendant  says  that  the 
plaintiff  is  estopped  to  claim  any  of  the  relief  prayed  for  in  the  bill 
of  complaint. 

11.  Answering  paragraph  eleven  of  the  bill  of  complaint,  defendant 
admits  that  he  has  now  gone  into  possession  of  said  lands  and  is  remov- 
ing the  timber  therefrom,  but  insists  that  he  is  in  the  exercise  of  his 
legal  and  equitable  rights  in  so  doing. 

12.  Answering  paragraph  twelve  of  the  bill  of  complaint,  defendant 
says  that  the  allegations  therein  are  mere  speculative  opinion,  and 
neither  admits  nor  denies  such  allegations,  but  insists  that  they  are  not 
material  to  the  question  herein  involved. 

Wherefore  the  defendant  prays  that  the  relief  hereinbefore  prayed  by 
defendant  in  his  cross-bill  herewith  filed  be  granted. 

N.  C.  Spencer, 

Attorneys  for  defendant. 

Cross-Bill. — Defendant  respectfully  shows  unto  the  court: 
1.  That  when  he  purchased  the  interest  of  Celestine  and  Elginas  Bois- 
sonneault  in  and  to  the  lands  described  in  the  bill  of  complaint  by 
means  of  the  quit-claim  deed  therein  described,  the  legal  title  to  said 
lands  was  in  John  Gasman,  as  alleged  in  the  foregoing  answer;  that 
such  legal  title  is  still  in  the  said  John  Gasman,  and  the  plaintiff  is 
not  now  in  position  to  make  a  good  conveyance  to  this  defendant  under 
the  terms  of  his  contract  with  the  said  Boissonneaults  until  he  has 
perfected  his  title  by  performing  his  said  contract  for  the  purchase 
of  the  said  lands  with  the  said  John  Gasman;  that  this  defendant  does 
not  know  the  amount,  if  any,  which  the  said  plaintiff  has  paid  upon  his 
said  contract  with  the  said  John  Gasman;  that  this  defendant  is  ready 
and  willing  and  now  offers  to  pay  any  amount  that  may  be  shown  to 
be  due  the  said  plaintiff  under  his  said  contract  with  the  said  Boisson- 
neaults, but  up  to  this  time  he  has  been  unable  to  get  a  statement 
from  the  plaintiff  as  to  how  much  there  is  now  due  him  thereunder, 
nor  how  much  the  plaintiff  is  indebted  to  the  said  John  Gasman  under  his 
contract  with  him;  that  in  order  that  all  the  equities  between  the  par- 
ties may  be  adjusted  and  each  receive  what  is  his  just  due  under  the 
several  contracts,  it  is  necessary  that  the  said  John  Gasman  be  made 
a  party  to  this  cause. 


§  203]  REFORMATION  OF  LAND  CONTRACTS  481 

2.  Defendant  further  shows  that  he  is  informed  and  believes  that  the 
said  Celestine  and  Elginas  Boissonneault  are  entitled  to  certain  credits 
which  should  be  applied  upon  their  said  contract  with  the  plaintiff,  but 
that  this  defendant  does  not  know  the  exact  amount  of  such  credits; 
that  such  credits  are  contained  in  the  books  of  the  plaintiff  and  that  such 
books  are  the  only  record  of  such  credits;  that  the  plaintiff  has  never 
accounted  to  the  said  Celestine  and  Elginas  Boissonneault  for  such 
credits  and  that  this  plaintiff  is  informed  and  believes  that  the  said 
Celestine  and  Elginas  Boissonneault  are  ignorant  of  the  amount  of 
credits  to  which  they  are  entitled,  and  that  the  only  way  in  which  this 
defendant  may  be  informed  of  the  amount  of  such  credits  is  by  means 
of  a  discovery  to  be  made  by  the  plaintiff  upon  the  matter  of  such 
credits. 

By  reason  of  the  matters  and  things  herein  set  forth  the  defendant 
prays: 

(a)  That  the  plaintiff  be  required  to  answer  this  cross-bill. 

(b)  That  the  said  John  Gasman  be  made  a  party  to  this  suit  and 
that  a  subpoena  may  be  issued  out  of  and  under  the  seal  of  this  court 
requiring  the  said  John  Gasman  to  enter  his  appearance  herein. 

(c)  That  the  plaintiff  may  be  required  by  the  decree  of  this  court  to 
make  conveyance  of  the  said  lands  to  this  defendant  in  accordance  with 
the  terms  of  his  said  contract  with  the  said  Celestine  and  Elginas 
Boissonneault,  and  that  in  default  thereof  this  defendant  may  be  subro- 
gated to  the  rights  of  the  said  plaintiff  under  his  contract  with  the  said 
John  Gasman,  and  upon  payment  of  all  amounts  due  the  said  John  Gas- 
man under  his  said  contract  with  the  plaintiff  and  to  the  plaintiff  under 
his  contract  with  the  Boissonneaults,  he  may  be  entitled  to  receive  a 
deed  to  the  said  lands  from  the  said  John  Gasman,  freed  from  any  and 
all  claim  of  the  plaintiff  therein. 

(d)  That  the  plaintiff  may  be  required  to  produce  all  books  of  account 
in  his  possession  or  under  his  control  containing  accounts  between  him- 
self and  Celestine  and  Elginas  Boissonneault  during  the  continuance  of 
his  said  contract  with  them,  for  the  inspection  and  examination  of 
this  defendant. 

(e)  That  this  defendant  may  have  such  other  and  further  relief  in  the 
premises  as  to  equity  and  good  conscience  as  shall  seem  meet. 

N.  C.  Spencer, 

Attorney  for  defendant. 
Business  address: 
Escanaba,  Mich. 
Dated  December  29,  1918. 

(f)  Answer  to  Cross-Bill.-— (Caption.)  The  above  named  plaintiff,  an- 
swering the  cross-bill  filed  herein,  respectfully  shows  unto  the  court: 

1.  The  plaintiff  admits  the  legal  title  to  the  lands  was  at  the  time 
of  the  purchase  of  the  same,  by  Menazip  Perron,  from  Celestine  and 
Elginas  Boissonneault,  and  is  now  in  John  Gasman,  that  the  said  Menazip 
knew  at  the  time  he  purchased  the  interest  of  the  said  Celestine  and 


482  THB  LAW  0F  LAND  CONTRACTS  [§203 

Elginas  Boissonneault  that  the  plaintiff  herein  had  an  undivided  one-half 
interest  in  and  to  the  property  described  in  the  bill  of  complaint  herein. 

Further  answering  paragraph  one  of  the  cross-bill,  the  plaintiff  informs 
the  court  that  he  has  paid  on  the  principal  of  the  contract  with  John 
Gasman  the  sum  of  three  thousand  seven  hundred  and  fifty  dollars  and 
interest  at  seven  per  cent,  per  annum  on  seven  thousand  five  hundred 
dollars  from  November  26,  1913,  to  November  26,  1918,  approximating  the 
sum  of  two  thousand  six  hundred  and  twenty-five  dollars,  that  he  has 
further  paid  as  his  share  of  the  taxes  the  sum  of  four  hundred  and 
eighty-eight  dollars,  that  the  above  sums,  together  with  a  balance  of 
three  thousand  seven  hundred  and  fifty  dollars,  and  accrued  interest 
totaling  an  approximate  sum  of  nine  thousand  five  hundred  dollars 
paid,  and  to  be  paid  by  the  plaintiff  upon  the  said  land  contract. 

2.  Answering  paragraph  two,  plaintiff  respectfully  shows: 

That  there  are  no  sums  due  to  the  said  Celestine  and  Elginas  Bois- 
sonneault from  this  plaintiff,  excepting  such  sum  as  may  be  received 
from  the  bankrupt  estate  of  the  John  Gillespie  Lumber  Company  of 
Chicago,  from  which  this  plaintiff  believes  the  said  Boissonneaults  may 
realize  the  sum  of  four  hundred  dollars. 

The  plaintiff  further  answering  paragraph  of  the  cross-bill,  says 

that  the  said  Celestine  and  Elginas  Boissonneault  at  the  time  of  the 
purchase  of  said  lands  did  not  pay  their  one-half  interest  in  full  and  that 
they  are  indebted  to  the  plaintiff  in  the  sum  of  two  hundred  and  fifty 
dollars  and  the  interest  on  said  sum  from  the  date  of  said  contract 
exhibited  herein  as  part  of  the  plaintiff's  bill  of  complaint. 

The  plaintiff  denies  that  the  defendant  is  entitled  to  any  relief  against 
him  by  reason  of  anything  in  said  cross-bill  contained,  and  prays  that 
the  same  may  be  dismissed  with  his  costs  in  this  behalf  sustained. 

Dated  January  14,  1919. 

John  J.  O'Hara, 

Attorney  for  plaintiff. 
Business  address: 
Menominee,  Mich. 

(g)  Decree. —  (Caption.)  At  a  session  of  said  court  held  at  the  court 
house  in  the  City  of  Menominee  on  the  7th  day  of  August,  1919. 

Present:  Hon.  Richard  C.  Flannigan,  Circuit  Judge. 

Appearances:  John  J.  O'Hara,  attorney  for  plaintiff;  N.  C.  Spencer, 
attorney  for  defendant. 

This  cause  having  come  on  to  be  heard  in  open  court  upon  the  bill  of 
complaint,  the  amendments  thereto,  and  the  answer  and  cross-bill  of 
the  defendants,  and  the  court  having  heard  the  arguments  of  counsel  of 
the  respective  parties,  does  find  that  the  material  allegations  of  said 
bill  of  complaint  as  amended  have  been  sustained  by  clear  and  con- 
vincing proof;  and  it  appearing  to  the  court  that  the  land  contract 
heretofore  on  the  26th  day  of  November,  1913,  executed  by  the  plaintiff 
to  Celestine  and  Elginas  Boissonneault,  as  described  in  said  bill  of  com- 
plaint, was  intended  as  security  that  the  said  plaintiff  would  pay  to  John 


§  203]  REFORMATION  OF  LAND  CONTRACTS  483 

Gasman  the  remaining  portion  of  the  purchase  price  of  said  lands,  and 
that  the  plaintiff  would  convey  an  undivided  one-half  of  said  lands  to  said 
Celestine  and  Elgines  Boissonneault;  it  further  appearing  to  the  court 
that  the  plaintiff  has  paid  to  the  said  John  Gasman  the  remaining  portion 
of  the  purchase  price  of  said  lands,  and  that  the  said  lands  have  been 
by  the  said  John  Gasman  duly  conveyed  to  the  plaintiff,  and  it  also 
appearing  that  the  defendant  Menazip  Perron  is  purchaser  and  owner 
of  all  the  right,  title  and  interest  at  any  time  had  or  possessed  by  said 
Celestine  and  Elginas  Boissonneault  in  and  to  said  lands  thereupon. 

On  motion  of  John  J.  O'Hara,  attorney  for  plaintiff,  it  is  ordered,  ad- 
judged and  decreed  that  the  plaintiff  and  the  defendant  Menazip  Perron, 
are  tenants  in  common  of  the  lands  and  premises  described  in  said  bill 
of  complaint,  and  said  contract,  and  that  said  tenancy  in  common  is  an 
undivided  one-half  interest  in  the  plaintiff  and  an  undivided  one-half 
interest  in  the  defendant,  Menazip  Perron,  and  dates  from  and  after 
the  26th  day  of  August,  A.  D.  1918,  the  date  upon  which  Celestine  Bois- 
sonneault and  Elginas  Boissonneault  conveyed  their  one-half  interest 
in  said  lands  by  quit-claim  deed  to  said  Menazip  Perron;  and  it  further 
ordered,  adjudged  and  decreed  that  the  plaintiff  do  convey  an  undivided 
one-half  of  said  lands  to  the  said  defendant  Menazip  Perron  which  said 
conveyance,  however,  shall  be  without  prejudice  to  the  right  of  the  plain- 
tiff to  recover  for  one-half  the  value  of  any  timber  heretofore  cut  or 
taken  from  said  lands  by  the  said  defendant;  and  it  is  ordered  that  in 
default  of  such  conveyance  on  the  part  of  the  plaintiff  to  the  said 
defendant;  then  that  this  decree  shall  be  held  to  operate  as  such  con- 
veyance and  leave  is  granted  to  record  this  decree  in  the  office  of  the 
Register  of  Deeds  of  Menominee  County,  where  said  lands  are  situated. 

And  the  attorneys  for  the  respective  parties  stipulating  in  open  court 
that  the  recent  acts  and  doings  of  the  defendant,  Menazip  Perron,  in 
relation  to  the  lands  described  in  said  bill  of  complaint  are  such  that  a 
partition  and  accounting  could  be  more  advantageously  had  and  more 
equitably  adjusted  between  the  parties,  by  the  plaintiff,  if  he  elect  so 
to  do,  filing  and  commencing  a  new  suit  setting  forth  such  new  matters 
and  recent  happenings,  all  occurring  subsequent  to  the  present  suit,  and 
the  plaintiff  being  content  to  have  partition  of  the  said  lands  deferred 
to  and  left  for  determination  in  a  subsequent  suit  to  be  commenced 
thereupon  the  plaintiff's  prayer  for  partition  in  the  present  suit  is  denied 
without  prejudice. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  defendant, 
Menazip  Perron,  pay  to  the  plaintiff  or  his  attorney,  the  costs  in  this 
suit  to  be  taxed,  and  that  the  plaintiff  have  execution  for  the  same. 

Richard  C.  Flannigan, 

Circuit  Judge. 

Examined,  countersigned  and  entered  by  me: 
Carl  A.  Anderson, 
Clerk  of  court. 


484  THE  LAW  OF  LAND  CONTRACTS  [§  203 

(h)  Authorities  Cited  by  Plaintiff.  Brief  for  Plaintiff. — 1.  Parol  evi- 
dence is  not  admissible  to  vary  or  contradict  terms  of  a  written  instru- 
ment, Adair  v.  Adair,  5  Mich.  203,  and  mistake  as  to  the  legal  effect  of  an 
instrument  constitutes  no  ground  for  relief.  Martin  v.  Hamlin,  18  Mich. 
353;  White  v.  Smith,  37  Mich.  290,  where  parties,  in  unambiguous  lan- 
guage, declare  in  a  written  instrument  itself,  the  purpose  of  an  agree- 
ment, and  neither  fraud  nor  mistake  is  claimed  in  the  pleadings,  it 
cannot  be  varied  by  parol.  Baker  v.  Baird,  79  Mich.  255;  Price  v.  Martin, 
122  Mich.  655;  Crane  v.  Bayley,  126  Mich.  323. 

Evidence  is  not  admissible  which,  conceding  the  existence  and  deliv- 
ery of  the  contract  or  obligation,  and  that  it  was  at  one  time  effective, 
seeks  to  nullify,  modify  or  change  the  character  of  the  obligation  itself, 
by  showing  that  it  is  to  cease  to  be  effective  or  is  to  have  an,  effect 
different  from  that  stated  therein,  upon  certain  conditions  or  contin- 
gencies, for  this  does  vary  or  contradict  the  terms  of  the  writing.  Smith 
v.  Mathis,  114  Mich.  262;  Ogooshevitz  v.  Arnold,  197  Mich.  203. 

In  the  last  cited  case  the  trial  court  found  that  the  actual  contract 
between  the  parties  was  not  embodied  in  the  written  instrument.  This 
court  said: 

"The  contract  being  complete  in  itself,  unambiguous,  certain  in  its 
terms,  no  fraud  or  mistake  being  alleged  in  the  pleadings,  it  was  error 
to  receive  evidence  contradicting  its  provisions,  or  tending  to  show  that 
it  did  not  embody  the  agreements  of  the  parties." 

2.  Mortgage:  A  mortgage  is  a  conveyance  of  an  estate  by  way  of 
pledge  for  the  security  of  a  debt  and  becomes  void  upon  payment  of  it. 
Goddard  v.  Coe,  55  Me.  385;  Babcock  v.  Hoey,  11  La.  375. 

A  mortgage  is  a  conveyance  of  lands  by  a  debtor  to  his  creditor  as 
a  pledge  or  security  for  the  repayment  of  money  due,  with  the  proviso 
that  such  conveyance  shall  become  void  on  payment  of  the  money  with 
interest  on  a  certain  day.     Hall  v.  Byrne,  2  111.  140. 

A  mortgage  is  in  effect  a  sale  with  a  power  of  defeasance,  which  may 
ultimately  end  in  an  absolute  transfer  of  title.  Woolen  Mfg.  Co.  v.  Bank, 
119  U.  S.  191. 

A  mortgage  conveys  an  estate  or  title  defeasable  on  condition.     If  the 
condition   is   performed   according   to   its   terms,   the   mortgage   immedi- 
ately becomes  void  and  the  mortgagee  is  divested  of  his  title.    Weeks  v 
Baker,  152  Mass.  20. 

The  terms  "security"  and  "mortgage"  are  not  co-extensive. 

The  term  "security,"  as  used  by  a  vendee  in  describing  a  bill  of  sale 
from  the  vendor,  which  purported  to  be  an  absolute  transfer,  is  not  suffi- 
cient to  fix  the  character  of  such  instrument  as  a  mortgage.  Prentice 
v.  Schirmer,  136  N.  Y.  305. 

In  a  land  contract  the  vendee  gets  an  equitable  title,  but  the  legal 
title  still  remains  in  the  vendor,  and  is  held  as  "security"  for  the  pur- 
chase price.    Hooper  v.  Van  Hausen,  105  Mich.  597. 

(i)  Authorities  Cited  by  Plaintiff.     Brief  for  Plaintiff. 

1.  The  contract  in  question  was  merely  a  mortgage. 


§  203  I         REFORMATION  OF  LAND  CONTRACTS         485 

An  absolute  deed  or  bill  of  sale  may  be  shown  to  have  been  intended 
as  a  mortgage.  Hurst  v.  Beaver,  50  Mich.  613;  McMillan  v.  Bissell,  63 
Mich.  66;  Flynn  v.  Holmes,  145  Mich.  606;  Pinch  v.  Willard,  108  Mich.  204; 
Perry  v.  Miller,  164  Mich.  429.  And  the  rule  also  applies  to  an  assign- 
ment of  an  executory  land  contract.  Gamble  v.  Ross,  88  Mich.  315;  Gun- 
derman  v.  Gunnison,  39  Mich.  313;    Jackiewicz  v.  Siwka,  187  Mich.   165. 

Parol  evidence  is  admissible  to  show  that  a  deed  was  intended  as  a 
mortgage.  Mintz  v.  Soule,  182  Mich.  564;  Emmerson  v.  Atwater,  7  Mich. 
12;  McMillan  v.  Bissell,  63  Mich.  66;  Smith  v.  Smith,  174  Mich.  269. 

It  is  a  well  established  rule  that  the  actual  consideration  for  deeds 
may  be  shown.  Ruch  v.  Ruch,  159  Mich.  231  (234);  Olney  v.  Brown, 
163  Mich.  125. 

The  fact  that  the  instrument  is  only  given  as  security  may  be  shown 
in  equity  even  though  there  is  no  fraud  or  mistake.  Flynn  v.  Holmes, 
145  Mich.  611. 

2.  Statute  of  Frauds:  The  case  at  bar  is,  in  some  respects  similar  to 
the  recent  case  of  Edwards  v.  Zuch,  reported  in  171  Mich.  29,  and  involv- 
ing a  joint  logging  enterprise,  wherein  the  court  said: 

"It  is  suggested  that,  as  this  co-partnership  agreement  was  oral  and 
dealt  with  the  sale  of  lands,  it  is  therefore,  void  as  being  within  the 
statute  of  frauds,  under  the  rule  laid  down  in  Nester  v.  Sullivan,  147 
Mich.  493  (111  N.  W.  85,  1033;  9  L.  R.  A.  (N.  S.),  1106).  The  holding  of 
the  trial  court  in  this  case  is  not  an  infringement  of  the  rule  laid 
down  in  that  case,  for  the  reason  that  the  complainant  is  the  owner  of 
the  title  and  the  person  for  whose  protection  the  statute  exists,  and  he 
insists  that  defendant  has  paid  for  and  is  entitled  to,  an  undivided  one- 
half  interest  in  the  40  acres.  Such  a  case  is  not  within  the  statute 
of  frauds.  Spalding  v.  Archibald,  52  Mich.  365  (17  N.  W.,  940;  50  Am. 
Rep.  253)."  Id.,  page  32. 

3.  Mortgage:  The  word  "security"  is  to  be  given  such  meaning  as  the 
witnesses  intended  in  the  light  of  all  the  facts  and  circumstances. 

"A  word  is  not  a  crystal,  transparent  and  unchanged,  it  is  the  skin  of 
a  living  thought  and  may  vary  greatly  in  color  and  contents  according 
to  the  circumstance  and  in  the  time  in  which  it  is  used."  Tourne  v. 
Eisner,  245  U.  S.  418. 


CHAPTER  XIII 

ACTIONS  FOR  FRAUDULENT  MISREPRESENTATIONS 

PLEADINGS,  EVIDENCE,   MISCELLANEOUS,  BILLS  OF  COMPLAINT, 

PLEADINGS  AND  BRIEFS  USED  IN  LATE  MICHIGAN  CASES 

I.  FALSE  REPRESENTATIONS 

§  204.  General  Principles. 

§  205.  Materiality  of  Representations. 

§  206.  Representations  as  to  Matter  of  Law. 

§  207.  Expressions  of  Opinion. 

§  208.  Promises  as  to  Improvements  or  Use  of  Real  Property. 

§  209.  Representations  as  to  Title,  Interest. 

§  210.  Concealment  of  Encumbrance. 

§  211.  Representations  as  to  Quantity,  Boundaries  or  Location. 

§  212.  Representations  as  to  Value. 

§  213.  Representations  as  to  Quality,  Condition  and  Improvement. 

II.  REMEDIES   FOR   FRAUDULENT   MISREPRESENTATIONS 

(a)  OF  THE  PURCHASER. 
§  214.  Jurisdiction  of  Equity. 
§  215.  Actions  at  Law. 

§  216.  Time  to  Rescind. 

§  217.  Waiver  of  Right  to  Rescind  by  Acts  of  Assertions  of  Ownership. 

§  218.  Restoration  of  Status  Quo. 

§  219.  Damages. 

(b)  OF  THE  VENDOR. 
§  220.  In  General. 

§  221.  As  to  Area. 

§  222.  As  to  Title. 

§  223.  As  to  Value  of  Land. 

§  224.  As  to  Thing  of  Value  Given  for  Land. 

§  225.  Non-Disclosure  and  Concealment. 

III.  PLEADING  AND  PRACTICE 

(a)  EQUITY. 

§  226.  Requisites  of  Bill  of  Complaint. 

§  227.  Allegations  of  Fraud  and  False  Representations. 

§  228.  Describing  Instrument. 

§  229.  Showing  Promptness  and  Diligence. 

§  230.  Offer  to  Restore  or  Do  Equity. 

§  231.  Answer  or  Counterclaim. 

§  232.  Form  of  Bill  of  Complaint. 

(b)  ACTIONS  AT  LAW. 

§  233.  Requisites  of  Declaration. 


§2041 


FRAUDULENT  MISREPRESENTATIONS 


487 


9  234.  Form. 

S  235.  Declaration. 

$  236.  (c)  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases,  Involv- 
ing Actions  for  Fraudulent  Misrepresentations,  Both  in  Equity 
and  in  Law. 

§  204.  Actions  for  Fraudulent  Misrepresentations — I.  False 
Representations — 1.  General  Principles. — If  a  party  is  de- 
ceived or  misled  into  believing  that  the  material  facts  are  dif- 
ferent from  what  they  really  are,  or  is  led  to  place  his  belief 
in  the  existence  of  alleged  conditions  or  circumstances  which 
are  purely  suppositious,  and  is  thereby  induced  to  enter  into  a 
contract,  it  is  evident  that  his  consent  has  not  been  freely  and 
intelligently  given.  A  party  who  has  been  induced  to  enter 
into  a  contract  or  any  kind  of  obligations  by  means  of  material 
misrepresentations  made  fraudulently  by  the  other  party,  to 
his  resulting  prejudice,  will  be  entitled  to  rescind  the  contract 
upon  discovering  the  fraud,  or  to  be  relieved  in  a  court  of 
equity.1 

The  essential  elements  of  a  fraudulent  misrepresentation 
have  been  stated  in  a  large  number  of  cases,  somewhat  as  fol- 
lows: (a)  There  must  have  been  a  false  representation  as  to 
a  material  matter  of  fact ;  (b)  There  must  have  been  a  scienter 
or  guilty  knowledge  of  its  falsity  on  the  part  of  the  person 
making  it;  (c)  The  person  to  whom  it  was  made  must  have 
been  ignorant  of  its  falsity;  (d)  There  must  have  been  an 
intention  that  it  should  have  been  acted  upon  by  him;  (e) 
The  latter  must  have  relied  upon  the  misrepresentation  and 
have  been  deceived  by  it,  and  acted  upon  it  ;2  (f )  Resulting  loss 


1.  Blampey  v.  Pike,  155  Mich.  384; 
Grand  Rapids  R.  Co.  v.  Stevens,  143 
Mich.  646;  Miller  v.  Voohies,  115 
Mich.  356;  Match  v.  Hunt,  38  Mich. 
1;  Wright  v.  Wright,  37  Mich.  35; 
Webster  v.  Bailey,  31  Mich.  36. 

2.  "Where  the  defendant  as  a  de- 
fense in  an  action  for  the  balance 
due  on  a  land  contract  set  up  that 
plaintiff  had  represented  that  his 
title  was  unencumbered,  while  in 
fact  it  was  encumbered  by  a  deed 
given   as   security   for  a   loan,   but 


that  he  discovered  the  false  repre- 
sentations the  day  after  the  execu- 
tion of  the  contract,  and  thereafter 
paid  a  part  of  the  consideration, 
held  that  defendant  was  in  no  posi- 
tion to  maintain  his  defense."  Dar- 
ling v.  Haff,  175  Mich.  304. 

"The  broker  of  the  defendant  rep- 
resented to  plaintiff  that  the  prop- 
erty contained  40  acres,  6-room 
frame  house,  small  barn  and  room 
enough  for  five  horses;  175  fruit 
trees    in    good    bearing    condition, 


488  THE  LAW  0F  LAND  CONTRACTS  [§  204 

or  damage  or  injury  must  be  shown  as  a  consequence.3 

In  Michigan  it  is  not  necessary  that  there  be  a  scienter  or 
guilty  knowledge  of  its  falsity  on  the  part  of  the  person  making 
it,  as  it  has  been  often  held  that  it  is  immaterial  whether  a 
false  representation  is  made  innocently  or  fraudulently,  if  by 
its  means  the  party  to  whom  it  is  made  is  injured.4  A  vendor 
of  real  property  who  agrees  to  convey  a  merchantable  title  is 
not  relieved  of  false  representations  concerning  the  title,  al- 
though he  supposes  the  statements  to  be  true.5  If  there  was 
in  fact  a  misrepresentation,  though  made  innocently,  and  its 
deceptive  influence  was  effective,  the  consequences  to  the 
plaintiff  being  as  serious  as  though  it  had  proceeded  from  a 
vicious  purpose,  he  would  have  a  right  of  action  for  damages 
caused  thereby,  either  at  law  or  in  equity.6 

A  vendor  of  land  must  be  prepared  and  able  to  convey  to 
the  purchaser  a  property  substantially  corresponding  with 
that  bargained  for,  as  well  with  regard  to  the  title  as  to  the 
situation  and  condition  of  the  property,  and  any  material  mis- 
representation made  to  induce  the  bargain,  and  which  so  far 
effects  the  subject  matter  that  the  agreement  would  not  have 
been  entered  into  except  for  its  influence,  is  a  fraud  which  will 
vitiate  the  transaction,  and  give  the  purchaser  a  right  to  re- 
scind or  to  be  released  from  his  contract.7 

fences    fair,   rents    at    $100.00,    the  formance   of  the   contract   arrives, 
representations    being    untrue,    the  such  statement  does  not  amount  to 
plaintiff  brought  suit  for  damages,  fraud  or  misrepresentation.  Johnson 
held   that   plaintiff   is   not   entitled  v.  Seymour,  79   Mich.  156. 
to    recover    where    the    defendant  4    Patron  Fire  Ins    Co   v   Pagen- 
informed  plaintiff  of  the  true  char-  koff>    213    Mich     158;     Aldricb<    v 
acter  of  the  property  before  com-  Scribner    154    Mich.   23. 
pleting  the  trade,  plaintiff  no  lon- 
ger having  a  right  to  rely  on  the 
statements  of  the  broker."    Aldrich 
v.  Schribner,  146  Mich.  609.  6-  Halcomb    v.    Noble,    69    Mich. 
3.  Fraud  and  representation  can  396=  Steinbach  v.  Hill,  25  Mich.  78. 
exist  only  when  a  false  statement          7.  Mather  v.  Barnes   (C.  C),  146 
has  been  made,  but  if  a  statement  Fed.    1000;     Bryan    v.    Houseman- 
is   false  when  made,   and   is   made  Spitzley  Corp.,  213  Mich.  236;  Barn- 
true  by  the  subsequent  conduct  of  hardt    v.    Hamel,    207    Mich.    232; 
the  party  responsible  for  such  state-  Hutchinson  v.  Westbrook,  191  Mich, 
ment,  before  the  time  for  the  per-  484. 


5.  Casset    v.    O'Riley,    160    Mich. 
101. 


§  206] 


FRAUDULENT  MISREPRESENTATIONS 


489 


§  205.  Materiality  of  Representations. — Not  only  the  falsity 
of  the  misrepresentations  must  be  shown,  but  also  the  fact  that 
they  were  material  to  the  transaction,  that  is  to  say,  not  tri- 
fling or  unimportant,  but  relating  to  a  substantial  matter  and  cf 
such  a  character  that  the  party  defrauded  would  not  have  en- 
tered into  the  contract  if  he  had  known  the  truth  of  the 
matter.8  Thus,  for  instance,  rescission  of  a  land  contract  will 
not  be  granted  on  the  ground  of  fraudulent  representations  of 
the  vendor  to  the  vendee  as  to  the  title  to  the  premises,  unless 
that  portion  of  the  land  to  which  he  cannot  make  title  con- 
stitutes the  principal  inducement  to  the  purchase,  and  without 
which  the  land  purchased  would  be  unfit  for  the  purpose 
intended.9 

§  206.  Representations  as  to  Matters  of  Law. — One  cannot 
rescind  or  withdraw  from  a  contract  into  which  he  was  in- 
duced to  enter  by  representations  made  to  him,  however  false 
and  fraudulent  when  such  representations  related  to  a  matter 
of  law,  as  distinguished  from  a  matter  of  fact.  This  rule  is 
supported  partly  upon  the  maxim  that  "ignorance  of  the  law 
is  no  excuse"  and  partly  upon  the  consideration  that  one  is 
not  justified  in  relying  upon  representations  made  to  him  by 
another,  when  the  truth  of  the  matter  is  not  within  the  exclu- 
sive or  peculiar  knowledge  of  either,  and  no  fiduciary  relation 
exists,  but  the  sources  of  information  are  open  to  both.    It  is 


8.  Representations  by  the  defend- 
ant in  an  exchange  of  real  estate 
that  his  farm  had  the  best  soil, 
A  No.  1,  for  the  raising  of  all  crops; 
that  it  was  a  heavy  clay  soil;  that 
it  was  well  worth  $12,000,  and  that 
in  showing  plaintiff  the  farm  de- 
fendant took  him  only  to  the  best 
part;  that  defendant  misrepre- 
sented the  kind  and  condition  of 
the  farmhouse,  saying  it  cost  $3,000 
to  build,  held  insufficient  to  sup- 
port a  bill  for  rescission  where  plain- 
tiff examined  the  land  before  pur- 
chase and  was  not  entirely  ignorant 
of  the  character  of  soils.  Lesser 
v.  Smith,  212  Mich.  559. 


Representations  by  the  defend- 
ant, a  co-owner  of  land,  that  he 
had  found  a  purchaser  who  would 
buy  the  entire  property,  and  that 
the  property  was  of  little  value,  and 
induced  his  co-owner  to  transfer 
his  interest  to  a  third  party  whom 
he  represented  to  be  acting  for 
the  purchaser,  but  who  transferred 
immediately  to  defendant's  wife, 
held  sufficient  to  entitle  the  plain- 
tiff to  recover  damages  for  the 
fraud  and  false  misrepresentations. 
Lewis  v.  Jacobs.  153  Mich.  665. 

9.  Coffee   v.    Newson,    2    Ga.    422. 


490  THE  LA"W  OF  LAND  CONTRACTS  [§  206 

generally  considered  that  it  is  not  an  actionable  fraud  to  mis- 
lead a  person  as  to  the  nature  or  strength  of  his  title  to  prop- 
erty, or  to  assert  that  an  adverse  claimant  has  a  better  title, 
as  these  are  matters  of  law.10 

A  statement  in  regard  to  the  legal  effect  of  a  contract  or 
other  instrument  or  the  legal  rights  and  legal  duties  of  the 
parties  under  it,  is  not  a  fraudulent  misrepresentation  justify- 
ing relief  in  equity,  since  it  relates  to  matter  of  law.11 

Representations  made  by  a  Railroad  Company  seeking  to 
obtain  a  strip  of  land  for  its  lines,  that  they  were  in  a  position 
to  bring  condemnation  proceedings,  if  the  owner  refused  to 
give  the  company  the  right  of  way  over  her  land  and  that  they 
could  make  it  expensive  for  her,  while  in  fact  the  company  had 
no  such  power  and  dealt  with  the  owner,  a  woman,  who  was 
not  familiar  with  business  transactions,  held,  that  the  Railroad 
Company  could  not  maintain  an  action  for  specific  performance 
on  the  option  obtained  by  fraud  and  misrepresentation.12 

§  207.  Expressions  of  Opinions.  —  The  misrepresentation 
must  be  of  a  material  fact,  and  not  a  statement  which  is  put 
forth  merely  as  the  judgment,  estimate,  or  opinion  of  the  party 
making  it,  or  a  statement  which  from  the  nature  of  the  case, 
can  be  nothing  more  than  opinion.  Where  for  instance,  the 
defendant  represented  that  he  was  the  owner  of  valuable  tim- 
ber land  and  if  plaintiff  would  enter  into  an  enterprise  with  him 
in  taking  timber  from  said  land  and  put  in  a  few  hundred  dol- 
lars, he  would  realize  therefrom  in  4  or  5  months,  three  to  four 
thousand  dollars  profit,  "that  it  was  a  sure  thing  and  a  good 
investment  and  could  not  fail  in  the  time  aforesaid  to  yield 
plaintiff  large  returns,"  it  was  held  that  the  above  expressions 
were  mere  matters  of  opinion  and  would  not  sustain  an  action 
for  misrepresentation  and  fraud.13 

In  a  suit  to  rescind  a  contract  whereby  plaintiff  received  in 
exchange  for  his  farm,  an  electric  light  plant,  and  the  defend- 
ant represented  that  only  $35.00  worth  of  fuel  per  month  was 
necessary  and  that  the  income  was  $90.00  per  month,  held 

10.  Driver  v.  White  (Tenn.)  5  S.  12.  Grand  Rapids  R.  R.  Co.  v. 
W.  994.                                                          Stevens,  143  Mich.  646. 

11.  Tradesman  Co.  v.  Superior  13.  Kulesza  v.  Wyhomski,  213 
Mfg.   Co.,   147   Mich.   702.                          Mich.  189. 


§  208]  FRAUDULENT  MISREPRESENTATIONS  491 

insufficient  to  entitle  plaintiff  to  rescind,  where  the  actual  cost 
and  income  was  only  a  slight  difference  and  to  be  mere  expres- 
sions of  opinion  as  to  values,  upon  which  men  might  fairly  and 
honestly  differ.14  Representations  by  the  defendant  that  the 
fruit  on  his  farm  would  pay  for  it  the  first  year,  held  not  to 
be  a  representation  concerning  a  present  existing  fact,  but  a 
mere  matter  of  opinion,  the  falsity  of  which  would  not  justify 
a  rescission.15  If  in  the  general  rule  that  if  the  parties  are 
dealing  at  arms  length  and  on  equal  terms,  statements  as  to 
value  made  by  the  one  or  the  other,  even  when  not  mere  ex- 
pressions of  opinion,  cannot  be  relied  upon  and  they  will  not 
amount  to  fraud,  though  known  to  be  false  by  the  party  to 
whom  they  are  made.16 

§  208.  Promises  as  to  Improvement  or  Use  of  Real  Property. 

— Where  one  induced  another  to  sell  land  to  him  on  the  repre- 
sentations that  he  means  to  devote  it  to  a  certain  use,  whereas 
he  has  the  secret  intention  to  put  it  to  an  entirely  different 
use,  is  not  regarded  as  a  mere  promise  of  future  action,  but  as 
a  statement  of  a  material  existing  fact  which  will  warrant  the 
rescission  of  the  contract. 

The  converse  case  is  presented  where  a  person  is  induced 
to  purchase  land  of  no  great  present  value  by  false  promissory 
representations  concerning  plans  which  would  greatly  increase 

14.  Albright  v.  Stockhill,  208  took  him  by  an  unusual  route,  to 
Mich.  469.  Representations  of  de-  keep  him  away  from  those  who 
fendant  that  if  plaintiff  would  give  might  have  been  likely  to  give  him 
his  time  to  the  business  he  could  more  accurate  information,  al- 
make  $1,000  a  year  over  and  above  though  much  of  the  representations 
his  expenses,  held  a  statement  con-  consisted  of  matters  which  must 
cerning  a  future  fact  and  not  a  ordinarily  rest  in  opinion  merely, 
past  or  present  one,  and  did  not  en-  were  sufficiently  combined  with  rep- 
title  plaintiff  to  rescind.  Burch  v.  resentations  of  fact  as  to  justify  a 
Stringham,   210  Mich.  48.  rescission  by  the  purchaser.  Wright 

v.  Wright,  37  Mich.  55. 
Representations  by  one  who  has 

been  in  actual  occupation  and  cul-  15-  Draft     v-     Herselsweet,      194 

tlvation  and  purports  to  speak  from  Mich.  604. 

actual  results  in  regard  to  its  value  16.  Hammer  v.  Martin,  205  Midi. 

and     productiveness,     and     in     the  359;   Bristol  v.  Bradiwood,  28  Mich 

amount  of  timber  thereon,  and  in  191;  Allison  v.  Ward,  63  Mich.  128; 

showing  the  land  to  the  purchaser  Walker  v.  Casgrain,  101  Mich.  604. 


492 


THE  LAW  OF  LAND  CONTRACTS 


[§208 


its  value,  especially  in  the  case  of  sales  of  suburban  property 
or  lots  in  new  towns.17 

Representations  that  a  railroad  will  enter  the  town,  that  a 
depot  will  be  built  nearby ;  that  a  street  railway  will  pass  the 
property  in  question,  that  other  buildings  will  be  erected  in  the 
neighborhood ;  that  streets  will  be  laid  out  and  graded ;  that  the 
lot  in  question  will  beconnected  with  water  and  gas  mains  and 
sewers  or  the  like,  the  accepted  rule  is  that  insofar  as  they 
relate  to  matters  to  be  performed  in  the  future  by  third  per- 
sons, they  are  mere  expressions  of  opinion,  and  not  actionable 
fraud ;  and  insofar  as  they  constitute  promises  of  future  action 
by  the  vendor  himself,  they  do  not  constitute  ground  for  the 
rescission  of  the  sale  unless,  at  the  time,  he  had  a  specific  inten- 
tion not  to  redeem  them,  and  simply  used  this  device  to  deceive 
and  cheat  the  purchaser.18 

A  provision  in  a  land  contract  "to  grade  and  cinderize  the 
streets  within  said  subdivision,  lay  cement  sidewalks  in  front 
of  each  lot,  and  plant  shade  trees  on  or  before  one  year  from 
date  hereof"  held  sufficient  representations  to  entitle  plaintiff 
to  recover  damages  upon  breach  of  the  provision.19 

As  a  general  rule  the  breach  of  a  promissory  representation 
or  the  failure  to  keep  a  promise  made  with  reference  to  the 
subject  of  the  sale,  will  not  warrant  a  rescission  of  the  con- 
tract, although  it  may  give  the  purchaser  an  action  for  dam- 
ages,20 but  such  an  agreement  as  to  the  future  may  be  made 


17.  Miller  v.  Andrews,  175  Mich. 
351. 

18.  Day  v.  Scott,  153  111.  293,  38 
N.  E.  562;  Mammaux  v.  Cape  May 
Co.,  214  Fed.  757;  Wabash  R.  Co. 
v.  Grate,  53  Ind.  App.  583,  102  N. 
E.  155;  Canon  v.  Farmers'  Bank,  3 
Neb.  348,  91  N.  W.  585;  Western 
Co.  v.  Novatny,  32  S.  D.  565,  143  N. 
W.  895;  Parsons  v.  Detroit  &  M. 
Ry.  Co.,  122  Mich.  462,  81  N.  W. 
343. 

19.  Gitson  v.  Yale  Land  Co.,  212 
Mich.  294. 

20.  Where    the    defendant    made 
representations  concerning  certain 


premises  and  stated  to  the  plain- 
tiff that  he  should  go  himself  upon 
the  land,  as  their  judgments  might 
not  agree,  and  if  not  satisfied  with 
the  land,  the  defendant  would  pay 
his  expenses,  but  if  satisfied,  the 
plaintiff  should  pay  them  himself, 
this  suggestion  impliedly  asserts 
that  the  defendant  had  himself  ex- 
ercised an  intelligent  judgment  and 
in  the  absence  of  any  intimation 
of  any  possible  doubt  of  the  facts 
being  as  represented,  would  be 
likely  to  dissuade  the  purchaser 
from    going,   and    could   not   shield 


§209| 


FRAUDULENT  MISREPRESENTATIONS 


493 


an  integral  part  of  the  contract,  where,  for  instance,  a  vendor 
represented  that  he  would  make  certain  improvements  in  a 
contract  to  sell  lots  on  monthly  installments,  as  fast  as  25 
per  cent  of  the  money  received  would  pay  for  them,  but  failed 
to  do  so,  it  was  held  that  the  purchaser  could  rescind  and  re- 
cover the  money  paid.21 

§  209.  Representations  as  to  Title,  Interest. — The  vendee  in 
a  land  contract  has  the  right  to  rely  on  the  representations 
made  by  the  vendor  concerning  the  validity,  nature,  or  extent 
of  his  title  or  interest.22    A  person  making  representations  as 


the  defendant  from  the  conse- 
quences of  his  misrepresentations. 
Webster  v.  Bailey,  31  Mich.  36. 

One,  who  during  the  negotiations 
for  the  sale  of  lands,  professes  to 
have  peculiar  scientific  knowledge 
as  to  the  probability  of  lands  prov- 
ing valuable  for  the  production  of 
oil  and  falsely  represents  the  value 
for  oil,  of  the  lands  he  is  endeavor- 
ing to  sell,  renders  himself  liable, 
if  the  purchaser  relies  upon  such 
misrepresentations,  and  is  deceived 
by  such  false  assertions  of  value. 
Kast  v.  Bender,  25  Mich.  515;  Pic- 
ard  v.   McCormick,  11  Mich.  68. 

21.  Laser  v.  Fowler,  114  Ark.  574. 

22.  Representations  made  by  the 
vendor  of  land  that  he  held  title 
to  the  land,  when  in  fact  he  only 
had  an  equity,  in  peril  of  being 
foreclosed  and  cut  off  by  an  over- 
due mortgage  held  to  be  material 
and  where  fraudulently  made,  en- 
titled plaintiff  to  a  rescission.  Allen 
v.  Talbot,  170  Mich.  664. 

Representations  by  a  party  in  an 
exchange  of  property  that  he  paid 
$800.00  for  his  interest  in  an  as- 
signment to  him  of  a  land  contract, 
which  on  its  face  showed  the  en- 
tire amount  of  the  contract  to  be 
unpaid,  save  some  of  the  interest, 


that  everything  had  been  paid 
on  the  contract,  that  he  owned 
the  entire  interest  therein,  which 
representations  were  false,  held 
to  be  material,  and  if  relied 
upon  by  the  plaintiffs,  entitle 
them  to  the  damage  sustained. 
Wayne  v.  Herkimer,  167  Mich.  587. 

Where  plaintiff  brought  an  action 
for  replevin  for  a  house  built  by  the 
defendants  upon  land  held  by  them 
under  a  contract  of  purchase,  the 
plaintiff  being  vendor,  where  de- 
fendants had  removed  the  house 
from  the  premises,  it  was  compe- 
tent for  the  defendants  to  plead 
as  a  matter  of  defense  that  they 
were  induced  to  enter  into  the  con- 
tract of  purchase  by  false  and  fraud- 
ulent representations  of  plaintiff 
as  to  the  state  of  his  title.  Cutter 
v.  Wait,  131  Mich.  509. 

Representations  by  the  defend- 
ant that  he  was  the  owner  in  fee 
simple  of  certain  land  in  Arkansas 
worth  $1,600;  that  it  was  improved 
and  under  a  good  state  of  culti- 
vation; that  he  was  in  possession 
of  the  land  by  a  tenant  and  was 
receiving  a  portion  of  the  crops 
then  growing,  and  a  defendant  gave 
a  warranty  deed  to  plaintiff,  in  an 
exchange  of  lands;  held  sufficient 
to  entitle  plaintiff  to  recover  where 


494 


THE  LAW  OF  LAND  CONTRACTS 


[§209 


to  his  title  is  required  to  disclose  the  whole  truth,  and  if  he 
places  himself  in  a  position  where  his  silence  will  convey  a  false 
impression  of  the  truth,  it  is  as  much  a  fraud  as  the  making 
of  a  positive  false  statement.23  It  is  not  necessary  that  the 
purchaser  search  the  public  records  with  respect  to  the  validity 
of  the  vendor's  title,  if  the  vendor  made  express  representa- 
tions concerning  his  title  to  land.24 

§  210.  Concealment  of  Encumbrance. — Where  the  vendor  is 
guilty  of  false  representations  regarding  the  existence  of  en- 
cumbrances on  the  land,  or  as  to  their  amount  or  other  mate- 
rial particulars,  the  vendee  has  the  right  to  rescind  the  con- 
tract.25 A  rescission  may  be  claimed  on  account  of  fraudulent 
concealment  or  misrepresentation  concerning  unpaid  taxes  on 


the  representations  were  false  and 
the  deed  was  not  a  full  covenant 
warranty  deed,  but  one  with  special 
covenants  against  the  defendant's 
own  acts.  Wollenslagle  v.  Runals, 
76  Mich.  545. 

23.  Kronfeld  v.  Missal,  87  Conn. 
491,  89  Atl.  95. 

24.  Manley  v.  Johnson,  85  Vt.  262, 
81  Atl.  919. 

25.  Representations  in  an  ex- 
change of  property  that  the  bal- 
ance upon  a  land  contract  was  not 
to  exceed  $2,000.00  and  that  there 
was  nothing  past  due,  when  in  fact 
about  $900.00  was  then  due  and  ow- 
ing, held  sufficient  to  sustain  a  de- 
cree for  plaintiffs.  Banski  v.  Michal- 
ski,  204  Mich.  15. 

Representations  that  defendant's 
equity  in  certain  property  was 
$8,200,  while  in  fact  it  was  $3,650. 
which  representations  were  relied 
upon  by  plaintiffs,  held  sufficient 
to  sustain  a  decree  for  plaintiff  re- 
scinding the  transaction  on  the 
ground  of  fraud.  Pound  v.  Clum, 
204  Mich.  28. 


In  an  exchange  of  property,  de- 
fendant failed  to  convey  certain 
property  which  he  claimed  he 
owned,  but  did  agree  to  convey  an- 
other piece  of  property,  which  he 
held  out  to  be  bringing  in  $50.00 
per  month,  while  in  fact  it  only 
brought  in  $36.00  per  month,  and 
this  contract  was  cancelled,  defend- 
ant agreeing  to  convey  five  lots,  to 
which  he  did  not  have  title,  held 
that  the  testimony  of  plaintiff,  that 
defendant  obtained  valuable  prop- 
erty from  her  without  giving  her 
substantial  return,  sufficient  to  sus- 
tain a  verdict  in  an  action  for 
fraud.  Thomas  v.  Miller,  202  Mich. 
43. 

A  party  purchasing  property, 
which,  according  to  the  vendor's 
representations,  fraudulently  made, 
that  the  property  is  unencumbered, 
can  sue  for  the  false  representation 
and  the  constructive  notice  fur- 
nished by  the  record  of  the  mort- 
gage will  not  deprive  the  vendee 
of  the  right  to  rely  on  the  vendor's 
statements.  Weber  v.  Weber,  47 
Mich.  569. 


§211]  FRAUDULENT  MISREPRESENTATIONS  495 

the  land,2S  or  the  existence  of  an  attachment  on  the  land  with 
a  decree  against  the  former  owner,87  or  the  existence  of  build- 
ing restrictions  affecting  the  land.88  A  vendor's  false  repre- 
sentation as  to  the  rate  of  interest  on  a  mortgage  subject  to 
which  he  sells  the  land  is  material  in  an  action  based  on  fraud 
in  the  transfer.29 

A  representation  by  the  vendor  that  he  has  made  no  prior 
contract  for  the  sale  of  the  same  land,  and  the  vendee  has  no 
knowledge  or  notice  of  an  unrecorded  prior  contract  which 
binds  the  vendor  to  sell  the  premises  to  another  person,  is 
sufficient  to  entitle  the  vendee  to  rescind  the  contract  where 
he  has  relied  on  such  representation.80 

§211.  Representations  as  to  Quantity,  Boundaries,  or  Loca- 
tion.— An  owner  of  land  is  presumed  to  know  the  nature,  situa- 
tion and  extent  of  his  property.  Hence,  if  a  vendor  of  land 
represents  it  as  containing  a  greater  quantity,  it  is  not  regarded 
as  a  mere  expression  of  opinion,  and  if  the  purchaser  is  de- 
ceived by  it  and  the  deficiency  in  quantity  is  material,  he  may 
rescind  the  contract.31 

If  the  vendor  undertakes  to  point  out  the  boundaries,  or 
states  positively  what  the  boundaries  are,  the  representation 
is  upon  a  material  matter  of  fact,  and  if  the  boundaries  so 

representations  that  the  premises 
contained  110  acres,  more  or  less, 
when  in  fact,  the  premises  con- 
tained only  104J  acres,  held  that 
the  shortage  was  sufficient  to  en- 
title plaintiff  to  relief.  Koch  v.  Bird, 
174  Mich.  594. 

Where  the  agent  of  the  vendor, 
having  in  his  possession  the  min- 
utes of  two  surveys,  showing  a  de- 
ficiency of  twenty  acres,  and  know- 
ing that  the  purchaser  knew  from 
31.  Worcester  v.  Cook,  220  Mass.  representations  made  to  him  that 
539,  108  N.  E.  511;  Quarg  v.  Scher,  he  was  paying  for  the  full  num- 
136  Cal.  406,  69  Pac.  96.  Plaintiff  ber  of  acres  set  forth  in  his  pro- 
brought  a  bill  for  reformation  of  posal,  held  that  the  false  represen- 
a  land  contract  and  requiring  de-  tations  as  to  quantity  entitled  the 
fendant  to  refund  a  part  of  the  plaintiff  to  rescind.  Burchard  v. 
purchase  price,  where  defendant  Frazer,  23  Mich.  224;  Boddy  v. 
lead  the  plaintiff  to  believe,  by  false      Henry,  126  Iowa  31,  101  N.  W.  497. 


26. 

Wilson  v. 

Balen, 

152  111. 

App 

210. 

27. 

Mullins  v 

.  Aiken, 

2  Tenn. 

535 

28. 

Tandy  v. ' 

Weerch, 

154  Cal. 

108 

197  Pac.  69. 

29. 

Jackson 

v.     Armstrong, 

5( 

Mich 

.  65    14  N. 

W.  702 

30.  Norris   v.   Hay,   149   Cal.   695, 
87  Pac.  380. 


496 


THE  LAW  OF  LAND  CONTRACTS 


[§211 


indicated  are  not  true,  so  that  the  purchaser  is  led  to  believe 
that  he  is  acquiring  property  which  actually  is  not  within  the 
true  boundaries,  it  is  a  fraud  which  entitles  him  to  rescind  the 

contract.88 

A  false  representation  as  to  the  location  of  the  land  sold 
will  give  a  right  of  rescission  where  it  was  relied  on  by  the 
purchaser  and  he  was  thereby  deceived  and  has  been  injured.33 
It  is  a  fraud  justifying  rescission  where  the  sale  is  induced 
by  false  representations  as  to  the  width  of  a  street,34  or  where 


32.  Laubengayer  v.  Rohde,  167 
Mich.  605;  Lion  v.  Henry  Brodford 
&  Co.,  209-172.  Where  defendant 
showed  plaintiff's  agent  a  tract  of 
land  which  was  under  negotiations 
as  being  the  land  in  question,  and 
the  plaintiff's  agent  examined  the 
land  as  to  its  timber,  and  the  plain- 
tiff purchased  the  land,  held  that 
the  plaintiff  could  recover  for  dam- 
ages where  he  reconveyed  the  land 
upon  discovering  that  the  defend- 
and  had  fraudulently  given  the 
plaintiff's  agent  the  wrong  direc- 
tions, and  the  plaintiff's  agent  had 
examined  the  wrong  tract  of  land. 
Loudon  v.  Carroll,  130  Mich.  79. 

Where  the  plaintiff  was  shown  a 
lot  inclosed  by  a  fence  and  con- 
taining a  dwelling  house,  shrubbery, 
etc.,  and  represented  to  be  the 
full  extent  of  the  property  to  be 
conveyed  and  plaintiff  relied  upon 
this  representation,  which  in  fact, 
was  untrue,  held  plaintiff  entitled 
to  damages  although  the  misrepre- 
sentation was  innocently  made  by 
defendant.  Banghman  v.  Gould,  45 
Mich.  481. 

Defendant  misrepresented  the 
quantity  of  land  in  a  parcel  the 
defendant  was  selling  and  it  was 
no  defense  that  the  plaintiff  saw 
the  land  and  examined  the  same, 
where  the  defendant  made  a  posi- 


tive assurance  of  the  area  of  the 
parcel  of  land,  and  the  plaintiff 
relied  upon  and  was  deceived  by 
the  misrepresentation.  Stark- 
weather v.  Benjamin,  32  Mich.  305. 

33.  Match  v.  Hunt,  38  Mich.  1.  In 
an  action  of  assumpsit  on  a  con- 
tract for  purchase  of  a  vacant  lot, 
defendant  set  up  as  a  defense  that 
plaintiff  represented  the  lot  to  be 
in  a  suburb  of  New  York  City;  that 
it  was  easy  of  access  by  steam  and 
trolley  lines;  that  seven  adjoining 
lots  had  been  sold  to  residents  of 
defendant's  city;  that  the  lots  were 
valuable  and  increasing  in  value, 
while  in  fact  these  representations 
were  false  and  fraudulent,  held: 
that  defense  of  fraud  was  a  bar 
to  the  recovery  of  the  plaintiff.  Mil- 
ler v.  Andrews,  175  Mich.  351. 

Representations  by  the  agent  of 
the  vendor  of  a  lot  that  the  lot  was 
within  fifteen  feet  of  Industrial  ave- 
nue, which  representation  was  false, 
and  relied  upon  by  plaintiff,  held, 
sufficient  to  entitle  plaintiff  to  sue 
for  damages,  where  she  purchased 
the  lot,  it  being  situated  a  greater 
distance  than  fifteen  feet  from  In- 
dustrial avenue.  Smith  v.  Mich. 
Realty  Co.,  175  Mich.  600. 

34.  Greiling    v.    Watermolen,    128 
Wis.  440,  107  N.  W.  339. 


§212] 


FRAUDULENT  MISREPRESENTATIONS 


497 


a  vendor  falsely  represents  that  the  premises  are  bounded  by 
public  alleys.35 

§  212.  Representations  as  to  Value. — Ordinarily  assertions 
as  to  value  of  real  property  are  to  be  regarded  merely  as  ex- 
pressions of  opinion,  but  such  statements  may  be  so  expressed 
or  given  under  such  conditions,  as  to  convert  them  into  mate- 
rial representations  so  that  their  falsity  will  warrant  the  pur- 
chaser in  rescinding.36  A  distinction  has  been  drawn  between 
representations  as  to  the  value  of  the  property  and  representa- 
tions that  the  property  could  be  sold  upon  the  market  for  a 
certain  price,  the  latter  being  held  to  be  a  representation  of 
fact  distinguished  from  opinion.37 

On  an  exchange  of  property,  representations  that  a  flat  was 
worth  $75,000.00 ;  that  the  yearly  rentals  were  $4,200 ;  that  the 
total  annual  expense  of  upkeep  would  not  exceed  $600;  that 
all  the  apartments  were  rented  for  $65.00  per  month,  and  all 
the  garages  at  $5.00  per  month ;  that  the  barn  could  be  made 
into  living  quarters  at  an  expense  of  $1,000.00;  the  evidence 


35.  Shultz  v.  Redondo,  156  Cal. 
439,  105  Pac.  118. 

36.  Small  v.  Kennedy,  137  Ind. 
299,  33  N.  E.  674 ;  Meritas  v.  Farley, 
147  N.  Y.  Supp.  503;  Wright  v. 
Wright,  37  Mich.  55.  The  rule  that 
the  vendor  has  the  right  to  praise 
his  property  and  to  give  his  opinion 
concerning  its  value  cannot  be  ex- 
tended to  warrant  false  represen- 
tations as  to  value  and  selling  quali- 
ties, which  may  be  relied  upon  by 
the  purchaser  and  operate  as  an  in- 
ducement to  the  deal.  Pratt  v.  Alle- 
gan Circuit  Judge,  177  Mich.  558. 

Representations  made  by  the  ven- 
dor that  the  property  was  worth 
from  $500  to  $2,000  and  that  the 
hotel  was  rented  to  one  Bair,  while 
in  fact  the  property  was  worth 
$250  and  the  lease  to  Bair  was  a 
mere  pretense  and  not  binding  upon 
him,  held,  that  false  statements  of 
value  intentionally  made  to  one  who 


is  ignorant  of  the  quality  and  value 
of  the  property,  is  sufficient  to  en- 
title the  plaintiff  to  recover  the 
damages  he  has  sustained.  Pinch 
v.  Hataling,  142  Mich.  522. 

One  Davis  received  a  receipt  from 
the  defendant  showing  that  Davis 
had  paid  $5,000  for  a  certain  piece 
of  real  property.  The  plaintiff  re- 
lied on  the  representation  made  by 
Davis  that  he  had  acquired  the 
premises  for  $5,000,  and  purchased 
same,  but  having  learned  that  in 
fact  Davis  had  only  paid  $2,500  for 
the  premises,  brought  suit  to  re- 
scind the  contract  against  the  de- 
fendant, who  had  fraudulently 
given  the  receipt  to  Davis.  Held. 
that  plaintiff  could  rescind  the  con- 
tract. Stoney  Creek  Woolen  Co.  v. 
Smalley.  Ill   Mich.  322. 

37.  Pound  v.  Clum.  204  Mich.  28; 
Hammer  v.  Martin,  205  Mich.  359. 


498  THB  LAW  0F  LAND  CONTRACTS  [§  212 

showed  that  all  the  representations  as  to  the  market  value  and 
the  net  income  of  the  flats  were  exaggerated  and  untrue,  the 
court  held  that  after  making  due  allowance  for  the  real  estate 
optimism  and  errors  of  judgment,  the  representations  were  so 
far  out  of  the  range  of  its  real  or  market  value,  and  that  plain- 
tiff could  recover,  it  being  unnecessary  to  determine  whether 
the  representations  were  made  in  good  faith.38  Where  a  broker 
represented  to  the  vendee  that  the  vendor's  price  was  $1,200, 
and  that  that  was  the  lowest  price  for  which  the  farm  could  be 
purchased,  while  in  fact  the  price  the  owner  had  set  was 
$900.00,  the  court  held  that  if  the  vendee  relied  upon  this 
representation,  the  broker  is  liable  for  the  difference.39 

A  statement  by  the  owner  of  a  hotel  that  it  is  worth  a  cer- 
tain price  and  that  it  will  earn  a  certain  sum  per  month,  and 
has  been  earning  that  much  for  the  preceding  five  months,  if 
false,  entitles  purchaser  to  recover  his  damages.40 

Representations  that  defendant  had  title  to  certain  lots ;  that 
they  were  worth  $400  each ;  that  other  lots  in  that  neighbor- 
hood were  selling  right  along  for  that  price;  and  where  the 
evidence  tended  to  show  that  plaintiff  had  no  knowledge  of  the 
value  of  land  and  told  the  defendant  so,  the  court  held  that 
whether  the  representations  as  to  the  value  of  the  land  are 
mere  expression  of  opinions,  and  if  false,  will  support  an  action 
by  the  vendee,  is  a  question  for  the  jury,  even  though  the 
vendee  saw  the  property  before  purchasing.41  A  representa- 
tion made  by  the  broker  of  a  land  owner  that  a  certain  tract 
of  land  was  worth  $7,000.00  and  to  induce  the  plaintiff  to 
believe  that  the  property  was  worth  $7,000.00,  the  land  owner 
conveyed  the  land  to  the  broker,  and  the  plaintiff,  and  to  aid 
the  broker  in  deceiving  the  plaintiff  as  to  the  real  consideration 
paid  received  in  the  plaintiff's  presence,  the  broker's  check  for 
$1,100,  the  plaintiff  subsequently  discovered  the  fraud  prac- 
ticed on  him  by  co-grantee  and  the  land  owner,  he  brought 

38.  Hillier  v.  Carpenter,  206  Mich.  40.  Miller  v.  Voorheis,  115  Mich. 
594.                                                                   356. 

39.  Hokanson  v.  Oatman,  165  41.  Moon  v.  McKinstry,  107  Mich. 
Mich.  512.                                                      668. 


S  213 1  FRAUDULENT  MISREPRESENTATIONS  499 

suit  to  recover  the  money  paid  by  him,  the  court  held  that 
the  false  representations  entitled  plaintiff  to  recover.42 

§  213.  Representations  as  to  Quality,  Condition,  and  Im- 
provements.— A  material  misrepresentation  of  fact  in  regard 
to  the  quality,  character  or  condition  of  land  which  is  the 
subject  of  a  contract  of  sale,  or  in  regard  to  its  adaptability  to 
specified  uses,  or  the  improvements  upon  it,  or  other  such 
matters,  furnishes  ground  for  the  rescission  of  the  contract 
when  made  under  circumstances  entitling  the  purchaser  to  rely 
upon  it. 

Under  this  heading,  we  have  abstracted  the  following  cases 
holding  misrepresentations  concerning  the  quality,  condition, 
and  improvements  of  land  sufficient  to  entitle  the  defrauded 
party  to  rescind  in  equity  or  at  law. 

Representations  in  an  attractive  circular  illustrating  and 
describing  the  defendant's  houses  and  bungalows,  that  they 
contained  modern  conveniences,  such  as  "steam  heat,  adequate 
sized  boiler,  and  surplus  radiation,  complete,  efficient,  econom- 
ized steam  heating  plant  connected  with  boiler,"  upon  which 
plaintiff  relied  and  entered  into  a  land  contract  for  the  pur- 
chase of  a  bungalow,  which  contract  did  not  contain  the  above 
representations,  it  was  held  that  evidence  of  such  misrepre- 
sentations not  merged  in  the  contract  was  admissible  for  the 
purpose  of  establishing  the  charged  fraud,  and  the  misrepre- 
sentations sufficient  to  entitle  plaintiff  to  a  verdict  for 
damages.43 

Representations  that  the  "Improvements  were  all  in  and 
paid  for  except  the  paving"  while  in  fact  the  city  had  liens 
on  the  property  for  failure  to  pay  assessments,  held  to  be  a 
material  statement  of  fact,  and  if  relied  upon  by  plaintiff,  en- 
titled plaintiff  to  recover  his  damages.44 

Representations  that  the  defendant  has  sold  2,000  acres  in 
the  vicinity  of  the  property  conveyed,  the  land  being  in  Cuba, 
and  that  the  purchasers  were  going  there  in  six  months,  and 
make  their  permanent  homes  there,  while  in  fact  no  land  had 

42.  Jandorf  v.  Patterson,  90  Mich.  44.  State  Security  &  Realty  Co.  v. 
40.                                                                  Badger,  200  Mich.  104. 

43.  Bryan   v.   Houseman   Spitzley 
Corp.,  213  Mich.  236. 


500  THE  LAW  OF  LAND  CONTRACTS  [§213 

been  sold  to  other  settlers,  held  that  the  representations  were 
not  mere  matters  of  opinion,  and  that  they  were  false  and 
material,  entitling  plaintiff  to  recover.46 

Representations  by  the  vendor  of  houses  that  they  were  all 
on  brick  foundations,  honestly  built,  and  that  the  best  mate- 
rials were  used  in  the  construction  and  that  the  workmanship 
was  excellent,  held  that  a  purchaser  who  has  no  experience  in 
houses  or  carpentry,  and  so  informs  the  vendor,  is  entitled  to 
rely  upon  his  representations,  and  may  rescind  a  contract  of 
purchase.46 

Representations  by  the  vendor  that  he  had  examined  his  land 
and  found  the  same  plaster  rock  at  a  certain  depth  below  the 
surface,  that  was  to  be  found  on  adjoining  land,  where  there 
were  valuable  quarries,  with  which  the  vendee  was  familiar, 
and  upon  which  he  relied  upon  making  the  purchase,  held  that 
defendant  could  recoup  his  damages,  where  the  land  proved 
to  be  worthless  for  plaster  purposes  in  an  action  by  the  vendor 
for  the  balance  of  the  purchase  price.47 

A  representation  by  the  vendor  that  the  land  was  within 
three  miles  of  the  Village  of  Newaygo,  was  the  best  kind  of 
farm  land,  would  raise  good  crops,  had  good  productive  clay 
soil,  well  suited  to  fruit  raising  and  had  on  it  valuable  timber, 
on  which  plaintiffs  relied,  not  having  seen  the  property  until 
after  purchase,  the  court  held  that  the  plaintiffs  were  entitled 
to  recover,  and  the  measure  of  damages  is  the  difference  be- 
tween the  value  of  the  premises  had  they  been  as  represented 
and  what  they  are  actually  worth.48 

Representations  made  by  the  agent  of  the  vendor  that  cer- 
tain land  was  good  for  farming,  and  would  raise  crops  of  all 
kinds,  that  it  was  worth  $50.00  per  acre,  and  that  certain 
acres  that  were  swamp  land,  could  be  drained  and  make  good 
farming  land,  held  to  be  sufficient  to  entitle  plaintiff  to  bring 
an  action  for  fraud  to  recover  his  damages.49 

Representations  that  certain  farming  land  in  the  State  of 
Alabama  was  choice  stump  land,  high  and  dry,  a  very  fine  black 

45.  Painter  v.  Lebanon  Land  Co.,  48.  Lion  v.  Henry  Bradford  &  Co., 
164  Mich.  260.  209  Mich.  172. 

46.  Culver  v.  Avery,  161  Mich.  323.  49.  Earnhardt  v.  Hamel,  207  Mich. 

47.  Morman  v.  Harrington,  118  232;  Hutchinson  v.  Westbrook,  191 
Mich.  623.  Mich.  484. 


§213]  FRAUDULENT  MISREPRESENTATIONS  501 

loam  with  a  clay  subsoil ;  ideal  for  farming  purposes,  free  and 
clear  of  underbrush,  without  any  mire  or  boggy  portion,  held 
sufficient  to  entitle  plaintiff  to  damages  where  he  relied  on  the 
presentations  which  were  false  and  fraudulent.60 

Representations  made  by  the  defendant  that  he  owned  a 
farm  for  which  he  had  paid  the  sum  of  $4,000.00,  that  there 
was  situated  upon  the  land  a  good  house  and  barn ;  that  there 
was  a  family  or  man  living  upon  and  working  said  farm,  all  of 
which  were  false  and  fraudulent,  held  sufficient  to  entitle  plain- 
tiff to  a  writ  of  capias  ad  respondendum  and  an  action  accrued 
for  damages.51 

Representations  made  in  an  exchange  of  farms  that  the 
defendant's  farm  was  good  for  producing  hay;  that  it  was 
fertile  and  good  for  all  kinds  of  crops,  when  made  to  the 
plaintiffs,  husband  and  wife,  the  former  understanding  Eng- 
lish imperfectly,  and  the  latter  at  times  insane,  which  repre- 
sentations were  relied  upon  and  were  false,  held  sufficient  to 
entitle  plaintiffs  to  rescind.62 

Representations  by  the  defendant  that  he  had  as  good  a 
judge  of  pine  as  there  was  in  Michigan  examine  his  land  and 
that  he  estimated  about  5  million  pine  on  the  land,  i/>  wrhite 
and  V2  Norway,  that  this  was  a  very  low  estimate;  that  the 
pine  is  of  good  quality;  that  the  land  is  worth  $5.00  per  acre 
for  farming  purposes  and  that  that  was  the  price  of  farming 
land  in  that  locality,  held  sufficient  to  entitle  plaintiff  to  dam- 
ages where  the  representations  were  false.53 

The  vendor's  false  representation  as  to  the  rate  of  interest 
on  a  mortgage  subject  to  which  he  sells  is  material  in  an  action 
based  on  fraud  in  a  transfer,  and  one  who  obtains  land  in  a 
trade  and  examines  the  land  before  the  trade  has  a  right  to 
show  that  he  was  misled  by  the  representations  of  the  other 
party  if  they  related  to  matters  of  which  no  one  would  ade- 
quately judge  on  a  casual  inspection,  such  as  to  the  capability 

50.  Haener  v.  McKenzie,  188  Mich.  52.  Blanpey    v.    Pike,    155    Mich. 
27.                                                                     384. 

51.  Merlan  v.  Kalamazoo  Circuit  53.  Halcomb  v.  Noble,  69  Mich. 
Judge,  ISO  Mich.  303.                                  398. 


502  THE  LAW  OF  LAND  CONTRACTS  [§213 

of  the   land   for  drainage   and   the   reason   why   water   was 
standing.64 

In  an  exchange  of  lands  defendant  represented  that  the 
land  was  a  certain  distance  from  a  railroad  station;  that  the 
whole  farm  except  eight  acres  was  good,  tillable  land;  that 
there  were  two  springs  of  water  and  a  good  well;  that  the 
farm  was  four  miles  away  from  a  grist  mill  and  saw  mill; 
while  in  fact  all  of  the  above  representations  were  untrue, 
held,  that  plaintiff  could  rescind,  he  having  relied  on  the  repre- 
sentations and  not  having  seen  the  farm  before  purchase.56 

§  214.  Remedies  for  Fraudulent  Misrepresentations. 

(a)   Of  the  Purchaser. 

1.  Jurisdiction  of  Equity.  Courts  of  equity  have  jurisdic- 
tion to  grant  relief  by  way  of  rescission  or  cancellation,  aganist 
contracts  or  conveyances  procured  by  false  representations.56 
This  jurisdiction  is  said  to  be  concurrent  with  that  of  the 
courts  of  law.57  If  the  remedy  which  the  law  affords,  a  re- 
covery of  damages,  is  adequate  to  the  case,  equity  may  properly 
refuse  to  interfere,  but  if  the  injury  caused  by  allowing  the 
contract  to  stand  would  be  irreparable,  if  no  proceeding  at  law 
would  afford  adequate  relief,  or  if  complete  justice  can  be 
done  only  by  rescinding  the  fraudulent  transaction,  then  the 
jurisdiction  of  equity  is  clear  and  undoubted.68  Whenever  a 
case  of  fraud  is  established,  a  court  of  equity  may  set  aside 
all  transactions  founded  on  it,  and  may  also  treat  acts  as  hav- 
ing been  done  which  ought  to  have  been  done,  and  convert  the 
party  who  has  committed  a  fraud  and  profited  by  it  into  a 
trustee  for  the  injured  party.59  A  court  of  equity  can  act  only 
on  the  conscience  of  a  party,  and  hence  if  a  party  has  done 
nothing  which  taints  his  conscience,  no  demand  can  attach 
upon  it  so  as  to  give  jurisdiction.60 

54.  Jackson     v.     Armstrong,     50  Super.  Ct.  466;   Garr  v.  Alden,  139 
Mich.  65.  Mich.    440;    Webster  v.    Bailey,   31 

55.  Match  v.  Hunt,  38  Mich.  1.  Mich.  36;   Alston  v.  Oregon  Power 

56.  Gilbert  v.  Haire,  43  Mich.  283.  Co-    (Ore.),   76  Pac.   964. 

57.  Fred  Macey  Co.  v.  Macey,  143  59.  Bennet  v.  Harper,  36  W.  Va. 
Mich.    138;     Culver    v.    Avery,    161  546,  15  S.  E.  143. 

Mich.   322.  60.  Boone  v.  Chiles,  10  Pet.  177, 

58.  Summer  v.  Staton  (N.  C),  65       9    L.    Ed.    388;    Hemmer  v.    United 
S.  E.  902;  Tibbins  v.  Burrell,  46  Pa.       States,  204  Fed.  898. 


§  215] 


FRAUDULENT  MISREPRESENTATIONS 


503 


To  avoid  multiplicity  of  suits,61  or  to  save  the  plaintiff  from 
the  expense  of  a  double  litigation  and  the  hazard  of  a  double 
recovery  against  him,62  or  where  he  cannot  obtain  adequate 
relief  without  compelling  a  discovery,63  or  an  accounting  is 
necessary  to  ascertain  and  adjust  the  relative  rights  of  par- 
ties,64 or  where  fraud  and  want  of  consideration,  relied  upon  as 
grounds  for  the  cancellation  of  a  deed,  do  not  appear  on  the 
face  of  the  deed,  nor  on  any  record  on  the  validity  of  which 
the  deed  depends,65  are  such  special  circumstances  that  give 
equity  jurisdiction.  Application  for  relief  in  equity  is  not 
granted  as  a  matter  of  course,  even  when  the  jurisdiction  of 
the  court  is  undoubted,  but  must  be  addressed  to  the  just  and 
sound  discretion  of  the  court,  to  be  exercised  in  conformity 
with  established  principles  and  precedents,  but  having  a  re- 
gard to  the  specific  facts  before  the  court,  and  in  the  exercise 
of  discretion,  the  court  has  power  to  impose  on  the  plaintiff, 
under  penalty  of  having  his  bill  dismissed,  such  terms  as  it 
may  deem  that  justice  requires.66 

The  mere  fact  that  a  person  might  have  a  remedy  at  law 
would  not  deprive  him  from  coming  into  a  court  of  chancery 
and  having  the  agreed  consideration,  or  the  value  of  the  prem- 
ises, declared  to  be  an  equitable  lien  upon  the  lands.67 

§  215.  Actions  at  Law. — A  court  of  law  can  award  damages 
for  the  breach  of  a  contract  or  for  the  deceit  or  fraud  by  which 
a  party  was  induced  to  enter  into  it,  but  cannot  rescind  a  con- 


61.  Louisville  Ry.  Co.  v.  Ohio  Im- 
provement Co..  57  Fed.  42. 

62.  McHenry  v.  Hazard,  45  N.  Y. 
580. 

63.  Smythe  v.  Henry,  41  Fed.  705. 

64.  Eggers  v.  Anderson,  63  N.  J. 
Eq.  264,  49  Atl.  578. 

65.  Summers  v.  Abernathy,  234 
Mo.   126,  136   S.  W.  289. 

66.  Springfield  Traction  Co.  v. 
Warrick,  149  111.  470,  94  N.  E.  933; 
Witt  v.  Sims  (Ga.),  78  S.  E.  467; 
Shaeffer  v.  Sheade,  7  Black   (Ind.) 


178;    Thomas   v.    McCue,   19   Wash. 
187,  53  Pac.  161. 

67.  Where  the  plaintiff  files  a  bill 
for  a  rescission  of  the  contract  but 
he  himself  is  not  in  position  to  re- 
scind, a  court  of  equity  will  retain 
jurisdiction  and  award  the  plain- 
tiff such  damages  as  he  has  suf- 
fered and  will  declare  such  damages 
a  lien  upon  the  real  estate  conveyed 
by  the  plaintiff  to  the  defendant. 
Albright  v.  Stockhill,  208  Mich.  469; 
Merrill  v.  Wilson.  66  Mich.  232; 
Carroll  v.  Rice,  Walk.  Ch.  373;  Le- 
fevre  v.  Chamberlain.  22S  Mass.  294. 
117  N.  E.  327. 


504  THE  LAW  OF  LAND  CONTRACTS  [§  215 

tract  or  cancel  a  deed.  While  the  jurisdiction  of  equity  in 
cases  of  fraud  is  undoubted,  it  does  not  necessarily  follow  that 
a  suit  is  maintainable  in  equity  for  the  rescission  of  a  con- 
tract merely  on  the  allegation  of  fraud,  but  there  must  be,  in 
connection  with  that  element,  some  special  circumstance 
which  renders  rescission,  by  the  mere  act  of  the  plaintiff  and 
his  remedy  at  law,  not  adaptable  adequately  to  cure  the 
wrong.68 

A  court  of  equity  will  not  interfere  where  the  law  affords  a 
complaining  party  a  plain,  adequate,  and  complete  remedy  for 
the  injury  he  claims  to  have  suffered.  It  has  been  held,  how- 
ever, that  although  a  clear  right  of  rescission  exists,  the 
remedy  which  the  law  affords  by  the  recovery  of  a  judgment 
for  money  or  property  is  necessarily  incomplete  and  inade- 
quate because  of  the  lack  of  power  to  effect  a  rescission  by  a 
direct  adjudication  thereof  so  that,  when  the  law  has  done  its 
utmost  in  the  way  of  giving  compensation  in  damages  it  must 
still  leave  the  contract  in  force,  which  may  be  a  detriment  to 
the  complaining  party  or  a  benefit  to  his  adversary.69 

An  executed  contract  for  the  sale  of  real  estate,  where  no 
actual  fraud  has  been  perpetrated,  will  not  be  rescinded  in 
equity  on  account  of  defects  in  the  title,  or  the  discovery  of 
undisclosed  incumbrances,  or  other  such  matters,  since  the 
purchaser  has  an  adequate  remedy  at  law  by  an  action  on  the 
covenants  or  warranties  in  his  deed.70 

A  bill  in  equity  for  cancellation  of  a  conveyance  is  not  the 
proper  remedy  for  injuries  suffered  by  the  breach  of  a  condi- 
tion subsequent  or  by  the  failure  to  redeem  promissory  repre- 
sentations which  do  not  go  to  the  entire  consideration  since 
the  injured  party  can  be  adequately  compensated  by  an  award 
of  damages  in  an  action  at  law.71 

It  is  the  general  opinion  that  where  a  party  is  induced  to 
enter  into  a  contract  by  fraud  or  false  representations,  he  has 

68.  Hall  v.  Bell,  143  Wis.  296,  177  71.  Lee  v.  Timken,   10  App.  Div. 

N   w.  967.  213,  41   N.  Y.   Supp.   979;    Bryan  v. 

69    Bruner  v.  Miller,  59  W.  Va.  36,  Houseman  Spitzley  Corp.,  213  Mich. 

52  S    E    995;   Allread  v.  Harris,  75  236;    State   Security    &   Realty    Co. 

G      gg7  v.   Badger,   200   Mich.   104;    Painter 

rr    „„.  .        v.  Lebanon  Land  Co.,  164  Mich.  260. 
70.  Haldane    v.    Sweet,    55    Mich. 

196;  Ryerson  v.  Willis,  81  N.  Y.  277. 


§216] 


FRAUDULENT  MISREPRESENTATIONS 


505 


an  absolute  right  to  have  it  rescinded,  and  that  though  the 
facts  may  be  such  as  would  sustain  a  common  law  action  for 
fraud  and  deceit,  and  though  he  may,  if  he  chooses,  elect  to 
pursue  that  course,  he  cannot  be  compelled  to  do  so,  and  the 
existence  of  such  a  remedy  at  law,  is  no  ground  for  dismissing 
his  suit  in  equity.72 

§  216.  Time  to  Rescind. — In  contracts  for  the  sale  or  ex- 
change of  real  property,  an  unreasonable  delay  on  the  part  of 
the  injured  party  to  claim  and  exercise  his  right  of  rescission 
will  warrant  the  imputation  of  laches  and  bar  his  right  to 
relief,  and  an  unexplained  and  unexcused  delay  in  demanding 
rescission  of  the  contract  will  preclude  the  granting  of  any 
relief  in  equity.73  But  no  absolute  limit  of  time  can  be  pre- 
scribed as  all  modifying  circumstances  of  the  particular  case 
must  be  taken  into  consideration.74 


72.  Baptiste  v.  Peters,  51  Ala.  159; 
Perry  v.  Boyd,  126  Ala.  162,  28  South 
711;  Relf  v.  Cherly,  23  Iowa  467, 
Smith  v.  Ryan,  191  N.  Y.  452,  84  N. 
E.  402;  Wright  v.  Deniston,  29  N. 
Y.  Supp.  718. 

73.  Carter  v.  Couch,  84  Fed.  735; 
Davis  v.  Godart  (Minn.),  154  N.  W. 
1091;  Thompson  v.  Milliken,  93  Kan. 
72,  143  Pac.  431;  Bennett  v.  Hickey, 
112  Mich.  379. 

In  an  exchange  of  premises  the 
defendant  represented  that  the  farm 
was  worth  in  the  open  marked 
$47.50  per  acre;  that  there  were 
no  insects  of  any  kind  in  the  lo- 
cality; that  the  gravel  pits  on  his 
farm  held  the  only  available  gravel 
pits  in  that  locality;  that  he  had 
raised  60  bushels  of  shelled  corn 
the  year  preceding  without  fertiliza- 
tion; that  there  was  no  overflow 
from  the  river.  Held:  insufficient 
to  entitle  plaintiff  to  rescind  where 
he  had  examined  the  land  before 
the  exchange,  and  after  living  on 
the  farm  3J  months,  gave  a  receipt 
as    follows    to    defendant,    "A   full, 


complete  compromise  settlement  of 
any  and  all  differerences  on  land 
and  other  trades."  Parkyn  v.  Ford. 
194   Mich.    184. 

Where  the  defendant  fraudulently 
represented  land  to  be  worth  $30.00 
per  acre;  that  the  original  cost  had 
been  more  than*  it  really  was,  that 
the  soil  was  productive  especially 
for  hay  and  wheat;  held  plaintiff 
not  entitled  to  rescind  where  he 
had  examined  the  premises  in  com- 
pany with  his  father  and  had  re- 
lied more  on  his  father's  judgment 
as  to  its  productiveness  and  value, 
and  occupied  the  land  three  years 
before  making  complaint.  Buxton 
v.  Jones,   120  Mich.  522. 

74.  Four  years.  Harington  v. 
Paterson,  124  Cal.  542;  57  Pac.  476; 
Martin  v.  New  Rochelle  Co.,  162 
N.  Y.  599;   57  N.  E.  1117. 

Three  years.  Watson  Coal  Co.  v. 
Casteel,  6S  Ind.  476;  Woodfolk  v. 
Morley,  98  Tenn.  467;  40  S.  W.  479. 

Two  years.  Richardson  v.  Lowe, 
149  Fed.  625;  Margo  Coal  Co.  v. 
Halderman  (Mo.),  163  S.  W.  828. 


506  THE  LAW  0F  LAND  CONTRACTS  [§  216 

A  plaintiff  coming  into  court  to  demand  the  rescission  or 
cancellation  of  a  contract,  and  being  met  with  the  imputation 
of  laches  from  his  long  delay,  may  show  that  he  was  lulled  into 
inaction  by  the  fraudulent  conduct  or  deceitful  representations 
of  the  defendant,75  or  that  after  learning  the  facts  which 
would  justify  a  rescission,  he  refrained  from  taking  steps  to 
terminate  the  contract,  at  the  request  of  the  defendant  and  as 
a  mere  matter  of  forbearance  or  indulgence  to  him,  to  give 
him  an  opportunity  to  perform  his  part  of  the  agreement  or 
in  reliance  on  his  promise  to  perform  or  to  remedy  the  matters 
objected  to.76  Where  a  party  protests  promptly  on  discover- 
ing that  he  has  been  defrauded  in  making  a  contract,  and  then 
enters  into  negotiations  for  a  peaceable  settlement  which  fail, 
a  bill  for  cancellation  of  the  contract,  filed  within  a  reasonable 
time  after  such  failure,  is  not  barred  by  laches.77 

A  party  having  the  right  to  rescind  a  contract  for  false 
representations,  and  aware  of  the  facts  that  give  him  such 
right,  will  be  held  to  have  waived  or  lost  his  right  after  a 
comparatively  short  delay  in  claiming  it,  if  in  the  meantime, 
the  circumstances  or  conditions  have  so  changed  that  it  is  no 
longer  possible  for  him  to  put  the  opposite  party  in  statu  quo 
or  so  that  the  effect  would  be  to  confer  a  greater  benefit  upon 
the  party  rescinding,  or  inflict  a  heavier  loss  upon  the  other 
party,  than  would  have  occurred  if  the  rescission  had  been 
made  promptly.78 

Eighteen  months.     Hammond  v.  the  mortgage  was   paid,  and  later 

Wallace,  85  Cal.   522;    24  Pac.   837.  upon  discovering  the  fraud  and  false 

Fifteen  months.    Wilbur  v.  Flood,  representations,     plaintiff     brought 

16  Mich.  40.  suit  to  rescind,  but  the  court  held 

75.  Cornell  v.  Crane,  113  Mich.  that  plaintiff  was  not  entitled  to  re- 
460.  lief,  where  he  had  made  no  inquiry 

76.  Hubbardson  Lumber  Co.  v.  as  to  the  whereabouts  of  the  mort- 
Bates,  31  Mich.  158.  gage  and  notes,  and  the  public  rec- 

77.  Fred  Macey  Co.  v.  Macey,  143  ords  showed  that  the  mortgage  was 
Mich.  138.  not  discharged,  and  had  been  recog- 

78.  Disbrow  v.  Jones,  Har.  (Mich.)  nized  as  a  subsisting  lien  in  deeds 
102;  Martin  v.  Ash,  20  Mich.  166;  executed  subsequent  to  the  time  of 
Dunks  v.  Fuller,  32  Mich.  242.  the   alleged   payment  of  the  mort- 

At  an  execution  sale,  the  mort-  gage.  Flowers  v.  Reilly,  125  Mich, 
gagee's  agent  told  the  plaintiff  that      562. 


§217] 


FRAUDULENT  MISREPRESENTATIONS 


507 


Where  the  purchaser  of  a  farm  discovered  the  fraud  prac- 
ticed upon  him  in  its  sale  soon  after  taking  possession,  but 
retained  possession  for  nearly  a  year,  and  made  his  payments 
as  provided  by  his  contract,  he  was  not  entitled  to  then  rescind 
the  contract  and  recover  the  full  amount  of  his  payments  on 
the  purchase  price.79 

Possession  from  1867  to  1872  of  premises  conveyed  to  him, 
although  the  false  representations  were  discovered  soon  after 
purchase,  held  to  have  barred  plaintiff  in  an  action  for  rescis- 
sion on  the  false  representations.80 

§  217.  Waiver  of  Right  to  Rescind  by  Acts  or  Assertions  of 
Ownership. — One  who  receives  property  under  a  contract  and 
discovers  that  he  has  been  defrauded  by  false  representations, 
should  thereafter  treat  the  property  as  a  reasonably  prudent 
and  careful  man  is  bound  to  treat  the  property  of  another 
found  in  his  possession,  but  not  his  own  property.  If  the 
vendee  discovers  an  undisclosed  incumbrance,  a  defect  in  the 
title,  a  deficiency  in  quantity,  fraud  or  false  representations, 
or  other  circumstances  which  would  justify  him  in  rescinding 
the  contract,  but  thereafter,  having  knowledge  of  such  cir- 
cumstances, exercises  acts  of  ownership  over  the  land  without 
asserting  any  intention  to  rescind,  he  will  be  held  to  have 
waived  his  right  to  do  so.81  It  is  an  assertion  of  ownership 
such  as  precludes  a  subsequent  rescission,  if  the  vendee  raises 
crops  on  the  land.82 


79.  Mestler  v.  Jefferies,  145  Mich. 
598. 

80.  Wright  v.  Peet.  36  Mich.  213. 

81.  Bennet  v.  Hickey,  112  Mich. 
379;  Hamburger  v.  Berman,  203 
Mich.  78. 

Where  the  parties  deal  at  arms- 
length,  acting  in  their  own  Inde- 
pendent investigations,  it  was  held 
plaintiff  failed  to  meet  the  burden 
of  proof  as  to  allegations  of  fraud 
and  misrepresentations  in  an  action 
to  rescind  in  the  purchase  of  a  tract 


of  land.  Loud  Lumber  Co.  v.  Ster- 
ling.  203   Mich.   119. 

Where  a  party  who  has  been  de- 
frauded continues  to  deal  with  the 
party  who  has  wronged  him,  as 
though  such  fraud  had  not  been  per- 
petuated upon  him,  or  continues  any 
course  of  conduct  which  indicates 
that  he  relies  upon  the  contract, 
such  conduct  on  his  part  will  con- 
stitute a  waiver  of  the  fraud  and 
an  affirmation  of  the  contract.  Din- 
nan  v.  Bloomfield  Hills  Land  Co., 
214  Mich.  54,  and  cases  cited. 

82.  Buxton  v.  Jones,  120  Mich.  522. 


508 


THE  LAW  OF  LAND  CONTRACTS 


[§218 


§  218.  Restoration  of  Status  Quo. — When  a  contract  for  the 
sale  of  land  has  been  consumated  by  the  execution  and  de- 
livery of  a  deed  to  the  vendee,  and  he  seeks  to  rescind  the  sale, 
such  person  must  tender,  or  at  least  offer  to  make  and  deliver 
a  deed  or  reconveyance.83  But  the  tender  of  such  a  reconvey- 
ance is  not  a  condition  precedent  to  the  maintenance  of  a  bill 
or  action  for  rescission,  it  being  sufficient  if  a  proper  deed  is 
produced  and  tendered  in  court  at  the  trial.84 

The  purchaser  under  an  executory  contract  for  the  sale  of 
land,  if  he  wishes  to  rescind  for  fraud  or  misrepresentation, 
must  first  restore  the  possession  of  the  premises  to  his  vendor, 
or  at  least  make  an  offer  in  good  faith  to  do  so.85  There  is  an 
exception  to  this  rule  where  it  is  shown  to  be  necessary  for 
the  purchaser  to  retain  possession  of  the  land  for  the  purpose 
of  securing  his  reimbursement  or  indemnity,  as,  for  instance, 
where  he  has  made  costly  improvements  on  the  land,86  and  in 
cases  where  the  vendor  is  shown  to  be  insolvent,  so  that  the 
land  itself  is  the  only  fund  to  which  the  purchaser  can  look 
for  the  return  of  his  purchase  money  or  the  cost  of  his  im- 
provements.87 

Where  a  contract  for  the  sale  of  land  is  rescinded,  at  the 
instance  of  either  party,  the  vendee  having  been  in  posses- 
sion of  the  land  under  the  contract,  is  accountable  for  a  proper 
rent  or  rental  value  of  the  premises,  or  for  the  value  of  his  use 
and  occupation  of  them,88  and  is  usually  reckoned  as  being 
equivalent  to  the  fair  or  reasonable  rental  value  of  the  land.89 


83.  Wilbur  v.  Flood,  16  Mich.  40. 

84.  Jandorf  v.  Patterson,  90  Mich. 
40. 

85.  Maddock  v.  Russel,  109  Cal. 
417;  42  Pac.  139;  Loveridge  v. 
Coles,  72  Minn.  57,  74  N.  W.  1109; 
Cox  v.  Holkerboer,  200  Mich.  86. 
Plaintiff  brought  a  bill  in  equity  for 
rescission  of  a  land  contract,  al- 
leging fraud  and  false  representa- 
tions on  the  part  of  the  defend- 
ant in  regard  to  the  character  of 
the  farm  and  personal  property 
thereon.  The  bill  did  not  allege 
an    offer   to    restore    possession   of 


the  farm  nor  a  tender  of  the  per- 
sonal property,  and  the  court  held 
that  plaintiff  could  not  rescind 
while  holding  possession  of  the 
farm.  Milbourn  v.  Maatsch,  211 
Mich.  544. 

86.  Thompson  v.  Sheppard  (Ala.), 
5  So.  334. 

87.  Kansas  Land  Co.  v.  Hill, 
(Tenn.)  11  S.  W.  797;  Allbright  v. 
Stockhill,  208  Mich.  469. 

88.  Allen  v.  Talbot,  170  Mich.  664; 
Hack  v.  Norris,  46  Mich.  587. 

89.  Allen  v.  Talbot,  170  Mich.  664. 


§219] 


FRAUDULENT  MISREPRESENTATIONS  500 


§  219.  Damages. — The  measure  of  damages  to  which  a  pur- 
chaser is  entitled,  is,  as  a  general  rule,  the  actual  loss  or  injury 
sustained  by  the  purchaser  as  the  fair  legal  and  natural  result, 
under  all  the  circumstances,  of  the  vendor's  breach,  but  no 
recovery  can  be  had  for  speculative  or  remote  damages,  and  if 
no  special  damages  are  shown  nominal  damages  only  can  be 
recovered.90 

Where  the  vendor,  without  fraud  on  his  part,  is  unable  to 
convey  a  good  title,  although  he  represented  to  the  vendee 
that  he  had  good  title,  and  the  defect  was  unknown  to  him 
at  the  time  the  contract  was  made,  the  purchaser  is  not  en- 
titled to  recover  damages  for  the  loss  of  his  bargain,  but  can 
recover  only  the  purchase  money  paid  with  interest,  and  ex- 
penses incurred  on  the  faith  of  the  bargain.91 

But  where  the  vendor  acts  in  bad  faith  in  failing  or  refusing 
to  convey,  as  where  he  is  chargeable  with  fraud,  the  purchaser's 
recovery  is  not  limited  to  the  purchase  money  paid  with  in- 
terest and  expenses,  but  he  is  entitled  to  compensation  for 
his  actual  loss,  or  as  it  is  called,  damages  for  the  loss  of  his 
bargain.92 

Where  it  is  established  that  a  purchaser  is  entitled  to  dam 
ages  for  the  loss  of  his  bargain,  his  measure  of  damages  is  the 
actual  injury  he  has  sustained  by  the  vendor's  breach  of  the 
contract,  together  with  a  return  of  the  purchase  money  where 
paid,  with  interest,  from  date  of  payment,  and  such  sums  as 
he  has  paid  for  taxes,  and  where  he  has  been  in  possession,  he 
is  entitled  to  the  reasonable  value  of  improvements  made  on 
the  land  in  good  faith,  less  the  value  of  his  use  and  occupation 
of  the  premises.93 

Substantial  damages  for  a  failure  or  refusal  to  convey  in- 
cludes a  loss  occasioned  by  a  rise  in  the  value  of  the  land,  and 
ordinarily  the  measure  of  damages  is  based  on  the  value  of 
the  land  at  the  time  of  the  breach  of  the  contract.94 

90.  French  v.  Bent,  43  N.  H.  448;  93.  Bartlett  v.  Smith,  146  Mich. 
Radford  v.  Wilson,  2  Bosw.  (N.  Y.)      188;  Cox  v.  Holkeboer,  200  Mich.  86. 

237-  94.  Dikeman  v.  Arnold,  71   Mich. 

91.  Hammond  v.  Hanuin,  21  Mich.       g5g 

374. 

92.  Allen    v.    Atkinson,    21    Mich. 
351. 


510  THE  LAW  OF  LAND  CONTRACTS  [§219 

Where  the  purchaser  brings  an  action  for  the  false  and 
fraudulent  representations  of  the  vendor  in  regard  to  the  char- 
acter or  quality  of  the  land,  the  measure  of  damages  is  the 
difference  between  the  value  of  the  premises  had  they  been 
as  represented  and  what  they  are  actually  worth.96 

§220.  Remedies  of  the  Vendor — In  General. — The  general 
rules  in  relation  to  misrepresentation  and  fraud  are  equally 
applicable  in  cases  where  the  purchaser  is  the  party  guilty  of 
making  the  false  statement,  subject  to  the  qualification  that 
the  vendor  has  ordinarily  special  means  of  knowledge  concern- 
ing the  nature,  condition,  and  quality  of  the  land,  and  is  there- 
fore not  to  be  deceived  by  such  false  representations.  Actual 
fraud  on  the  part  of  the  purchaser  entitles  the  vendor  to 
rescind.96 

§  221.  As  to  Area. — A  false  statement  by  the  purchaser  con- 
cerning the  area  of  the  land  contracted  for  is  ordinarily  a 
statement  of  a  matter  equally  within  the  knowledge  of  the 
vendor,  and  does  not  constitute  fraud  or  misrepresentation.97 

§  222.  As  to  Title. — False  representations  by  the  purchaser 
as  to  title  to  the  land  may  be  ground  for  rescission,98  but  not 
when  they  are  mere  expressions  of  opinion  nor  where  the 
vendor  does  not  rely  on  them  or  the  circumstances  are  not 
such  as  to  entitle  them  to  rely  on  them." 

§  223.  As  to  Value  of  Land. — A  false  statement  by  the  pur- 
chaser as  to  the  value  of  the  land  is  generally  a  statement  of 
opinion  concerning  a  matter  equally  within  the  vendor's  knowl- 
edge and  does  not  constitute  fraud  or  misrepresentation;  but 
the  contract  may  be  avoided  where  the  vendor  lives  at  a  dis- 
tance, and  there  is  concealment  of  material  facts  coupled  with 
misrepresentations  that  prevent  investigations.100 

95.  Lion  v.  Henry  Bradford  &  Co.,  99.  Saltonstall  v.  Gordon,  33  Ala. 
209  Mich.  172,  and  cases  cited.              149. 

96.  Garr  v.  Alden,  139  Mich.  440.  100.  Garr  v.  Alden,  139  Mich.  440; 

Storrs    v.    Scougale,   48    Mich.    387. 

97.  Marshall    v.     Lewis,     4    Litt.  ^  &n  ^^  f(jr  specific  perform. 

(Ky.)  140.  ance  of  a  written  contract  for  the 

98.  Smith  v.  Woodson  (Ky.),  92  sale  of  a  farm  in  Michigan  where 
S.  W.   980.  the  plaintiff  falsely  represented  the 


§225] 


FRAUDULENT   MISREPRESENT ATIONS 


511 


§  224.  As  to  Thing  of  Value  Given  for  Land. — The  purchaser 
has  ordinarily  special  means  of  knowledge  concerning  the  thing 
which  is  to  be  given  in  exchange  for  the  land,  and  a  false 
representation  by  him  concerning  such  thing  of  value  may 
amount  to  fraud  or  misrepresentation.  Where  the  land  is 
conveyed  for  stock  in  a  corporation,  fraudulent  representations 
as  to  the  stock  or  notes  is  ground  for  rescission.101  A  convey- 
ance of  land  included  by  fraudulent  representations  as  to  a 
patent  will  be  set  aside  at  the  instance  of  the  vendor.102 

§  225.  Non-Disclosure  and  Concealment. — The  failure  of  the 
purchaser  to  disclose  material  facts  to  the  vendor,  does  not 
amount  to  fraud  either  at  law  or  in  equity  if  relations  of 
special  trust  and  confidence  do  not  exist  between  the  parties.103 
The  contract  will  not  be  set  aside  because  the  purchaser  did 
not  inform  the  vendor  as  to  the  number  of  acres  in  the  tract 
sold,104  or  that  a  large  manufacturing  establishment  was  to  be 
located  in  the  neighborhood,106  or  a  railroad  is  to  be  built  near 
the  land.106 


value  of  the  land  to  the  owner  re- 
siding outside  of  the  State  of  Michi- 
gan, it  was  held  that  the  false  rep- 
resentation of  the  plaintiff  was  a 
bar  to  his  action  for  specific  per- 
formance. Swimm  v.  Bush,  23  Mich. 
99. 

101.  Graham  v.  Moffett,  119  Mich. 
303. 

102.  Dunks  v.  Fuller,  32  Mich. 
242.  Representations  made  by  de- 
fendant that  certain  land  was  worth 
a  large  sum  of  money,  that  the  de- 
fendant had  conveyed  the  land  to 
one  Davis  who  had  made  a  down 
payment  of  $12,000  in  cash  and  had 
given  two  first  mortgages  for  the 
balance,  and  that  the  said  Davis 
was  a  man  of  property  and  that 
the  balance  could  be  collected  from 
the  said  Davis;  and  that  there  were 
no  other  mortgages  or  liens  upon 
the  property,  whereby  the  plaintiff 


was  induced  to  exchange  certain 
real  estate  for  the  two  mortgages 
upon  the  property  sold  by  defend- 
ant to  Davis  and  the  plaintiff  later 
discovered  that  all  these  represen- 
tations were  false,  the  court  held 
that  the  plaintiff  was  entitled  to 
have  the  exchange  set  aside  in 
equity.  Goodrich  v.  Smith,  87  Mich  1. 

103.  Burt  v.  Mason,  97  Mich.  129; 
Williams  v.  Spurr,  24  Mich.  335. 

104.  Eichelberger  v.  Barnitz,  1 
Yeates  (Pa.)  307. 

105.  Standard  Steel  Co.,  v.  Stamm, 
207  Pa.  St.  419,   56  Atl.   954. 

106.  Burt  v.  Mason,  97  Mich.  127, 
where  it  was  held  that  no  legal  or 
moral  obligation  rests  upon  the  pro- 
posed purchaser  of  land  to  inform 
the  owner  of  the  prospective  con- 
struction of  a  railroad  to  a  point 
near  the  land,  and  the  concealment 
of  such  information  can  not  be  re- 


512 


THE  LAW  OF  LAND  CONTRACTS 


[§225 


Where  both  parties  know  that  there  are  iron  deposits  on  the 
land,  the  vendor  cannot  complain  because  the  purchaser  repre- 
sents that  he  desires  the  land  for  the  timber  thereon.107 

§  226.  Pleading  and  Practice — Equity — Requisites  of  Bill  of 
Complaint. — A  bill  in  equity  for  the  rescission  of  a  contract 
should  set  forth  with  certainty  and  particularity  the  facts 
constituting  the  ground  upon  which  rescission  is  demanded.108 
The  bill  should  allege  the  special  circumstances  founding  a 
jurisdiction  in  equity  and  justifying  an  exercise  of  the  discre- 
tionary power  of  the  court,  such  as  facts  which  make  it  appear 
with  reasonable  certainty  that  irreparable  injury  will  result 
to  the  plaintiff  if  the  relief  asked  is  not  granted ;  that  he  has 
no  adequate  remedy  at  law,  or  the  reasons  why  he  cannot 
obtain  adequate  relief  by  a  suit  or  defense  at  law,  though  it  is 
sufficient  in  this  respect  to  plead  the  facts  from  which  the 
inadequacy  of  any  remedy  at  law  can  be  clearly  perceived.109 
The  bill  of  complaint  should  show  that  the  plaintiff  is  free 
from  any  fault,  breach  of  contract  or  fraud  so  that  he  has  a 
good  standing  in  equity.110  Averments  must  also  be  made 
which  will  show  the  particular  acts  or  conduct  on  the  part  of 
the  defendant  which  give  rise  to  the  action.111 

In  general,  a  bill  for  rescission  or  cancellation  must  plead 
the  essential  facts  with  clearness  and  certainty  so  that  the 
defendant  may  be  able  to  answer  without  confusion.112 

§  227.  Allegations  of  Fraud  or  False  Representations. — It  is 

not  sufficient  to  charge  fraud  in  general  terms,  but  the  specific 
misrepresentations  must  be  set  forth,  and  these  must  be  stated 
distinctly  and  positively  and  not  indirectly  or  by  way  of  in- 
ference.113    Where  it  is  charged  that  a  conveyance  was  ob- 


garded  as  a  false  representation  of 
fraud  entitling  the  plaintiff  to  re- 
scind. 

107.  Williams  v.  Spurr,  24  Mich. 
335. 

108.  Manning  v.  Drake,  1  Mich. 
34;  Wilson  v.  Eggleston,  27  Mich. 
257. 

109.  Abbot  v.  Gregory,  39  Mich. 
68;  Lieberman  v.  Sloman,  118  Mich. 
355. 


110.  McCredie  v.  Buxton,  31  Mich. 
383;  Pearce  v.  Ware,  94  Mich.  321; 
Farr  v.  Childs,  204  Mich.  19. 

111.  Parkyn  v.  Ford,  194  Mich. 
184 ;  Milbourn  v.  Maatsch,  211  Mich. 
554. 

112.  Tong  v.  Martin,  15  Mich.  60; 
Fox  v.  Pierce,  50  Mich.  500. 

113.  Wilson  v.  Eggleston,  27  Mich. 
257. 


$  2291  FRAUDULENT  MISREPRESENTATIONS  513 

tained  by  means  of  fraud  practiced  by  an  agent  of  the  defend- 
ant, the  name  of  the  person  alleged  to  have  so  acted  must  be 
averred.114  It  is  further  necessary,  in  alleging  fraud  or  false 
representations  as  a  cause  of  action,  to  aver  distinctly  the 
falsity  of  the  representations  in  question,  the  defendant's  in- 
tention by  means  of  them  to  deceive  or  cheat  the  plaintiff  and 
that  the  plaintiff  relied  on  the  representations  made  to  him, 
and  that  he  was  thereby  misled  and  induced  to  enter  into  a 
transaction  to  which  he  would  not  have  assented,  but  for  his 
reliance  on  such  false  representations.115 

§  228.  Describing  Instrument. — The  bill  should  set  out  the 
agreement,  state  the  time,  place,  and  circumstances  of  its 
execution  and  delivery,  and  allege  the  parties  thereto.  It  was 
the  old  practice  to  incorporate  the  contract  or  deed  in  the  bill 
of  complaint,  but  this  is  no  longer  necessary  by  reason  of  the 
Michigan  Circuit  Court  Rules.  It  is  sufficient  to  set  forth 
the  substance  only  of  the  instrument,  and  to  attach  a  copy  of 
the  instrument  to  the  bill  of  complaint  as  an  exhibit.  This 
method  has  a  very  important  advantage  over  the  old  practice, 
because  it  enables  the  opposing  counsel  to  grasp  the  essential 
facts  of  the  instrument  relied  upon  by  the  pleader,  without 
reading  the  entire  instrument  and  simplifies  the  pleading. 
The  Circuit  Court  Rules  of  Michigan  provide : 
"Whenever  a  cause  of  action  or  defense  is  based  upon  a 
written  instrument  or  document,  the  substance  only  of  such 
instrument  or  document  shall  be  set  forth  in  the  pleading,  and 
a  copy  thereof  shall  be  attached  to  the  pleading  as  an  exhibit, 
which  shall  be  deemed  to  be  a  part  of  the  pleading,  or  said 
copy  may  with  like  effect  be  set  forth  in  the  pleading,  provided 
that  such  copy  need  not  be  attached  or  set  forth  when  the 
written  instrument  or  document  is  one  the  form  of  which  is 
prescribed  by  statute.    Profert  shall  not  be  required.116 

§  229.  Showing  Promptness  and  Diligence. — The  bill  is  gen- 
erally held  to  be  insufficient  unless  it  contains  an  allegation 
showing  when  the  plaintiff  claims  to  have  discovered  the  fraud 

114.  Aldrich     v.     Schribner,     146  397;  Banski  v.  Michalski,  204  Mich. 
Mich.  609.  15. 

115.  Morris    v.    Vyse,    154    Mich.  116    Mich   Cir  ct   Ruie  21,  Sec.  6. 
253;  Watson  v.  Wagner,  202  Mich. 


514  THE  LAW  OF  LAND  CONTRACTS  [§  229 

which  is  the  basis  of  the  action,  for  the  court  must  be  able  to 
determine  whether  he  acted  with  due  diligence  in  repudiating 
the  transaction  or  claiming  his  right  to  rescind.117  If  the 
dates  set  forth  in  the  bill  show  the  lapse  of  a  considerable 
period  of  time  after  the  original  transaction  so  as  to  raise  a 
presumption  of  laches  if  not  sufficiently  explained,  there  must 
also  be  allegations  explaining  or  adequately  excusing  the 
delay.118 

§  230.  Offer  to  Restore  or  Do  Equity. — The  plaintiff  must 
offer  in  his  bill  to  restore  to  the  defendant  whatever  property 
or  valuable  consideration  he  may  have  received  under  it,  as 
the  prime  object  of  a  suit  for  rescission  is  to  undo  the  original 
transaction  and  restore  the  former  status.119 

This  offer  may  be  made  in  the  form  of  an  allegation  that  the 
plaintiff  is  ready  and  willing  to  repay  to  the  defendant  all 
sums  advanced  by  him  under  the  contract,180  or  to  execute  a 
deed  of  reconveyance.  And  if  the  dealings  between  the  parties 
have  been  such  that  there  must  be  a  consideration  and  adjust- 
ment of  their  relative  rights  and  claims,  it  is  sufficient  for  the 
plaintiff  to  allege  in  his  bill  that  he  is  ready  to  do  and  willing 
to  do  equity  in  the  premises.121 

§  231.  Answer  or  Counterclaim. — The  answer  in  a  suit  for 
rescission  or  cancellation  should  not  take  issue  upon  immaterial 
points,  but  should  cover  all  the  equities  of  the  case.122  The  de- 
fendant may  set  up  as  many  defenses  as  he  may  have,  provided 
they  are  not  inconsistent  with  each  other.123  In  an  action  to 
rescind  a  contract  for  the  purchase  of  lands  on  the  ground  of 
defective  title  in  the  vendor,  the  answer  of  the  latter  should 
set  forth  his  title,124  or  if  it  is  alleged  that  he  made  fraudulent 

117.  Richardson  v.  Green,  61  Fed.  121.  Wright     v.     Dickinson,      67 
423.                                                                   Mich.  580;  Place  v.  Brown,  37  Mich. 

118.  Fisher  v.  Boody,  1  Curt.  206,       575- 

Fed.  Cas.  4,814;  Axtel  v.  Chase,  77.  122.  Brown  v.  Pierce,  7  Wall.  205, 

Ind.  74;  Sears  v.  Smith,  2  Mich.  243;       19  l.  Ed.  134. 

Haff  v.  Jennoy,  54  Mich.  511.  ,._     _        ,  _  „An   „ 

123.   Crowder  v.  Searcy,  103  Mo. 

119.  Jandorf  v.  Patterson,  90  Mich.      97    15  s   W    346 
40;   Milbourn  v.  Maatsch,  211  Mich. 

544  124.  Topp    v.    White,    12    Heisk. 


120.   Merril   v.   Wilson,    66   Mich. 
232. 


(Tenn.)    165. 


§232 1  FRAUDULENT  MISREPRESENTATIONS  515 

representations  as  to  his  ability  to  convey  the  title  in  fee 
simple,  his  answer  should  set  forth  his  ability  to  comply  with 
the  representations.125  In  an  action  to  cancel  a  deed  on  the 
ground  of  fraud  the  defendant  cannot  plead  the  plaintiff's 
fraud  to  defeat  a  recovery,126  and  a  charge  of  misrepresenta- 
tions made  by  the  defendant  is  not  answered  by  an  allegation 
of  misrepresentations  on  the  part  of  the  plaintiff.127  In  a  suit 
to  cancel  a  deed  on  the  ground  of  fraud  of  the  grantee,  a  cross- 
bill based  on  breach  of  the  convenants  of  warranty  and  against 
encumbrances  in  the  deed  cannot  be  maintained.128  The  defend- 
ant may  counterclaim  for  sums  which  would  be  justly  due  him 
if  the  transaction  in  question  were  rescinded,  as,  for  example, 
in  the  case  of  a  sale  or  exchange  of  lands,  for  the  rents  of  the 
property  while  in  the  other's  possession,  or  for  money  spent  in 
making  repairs  or  improvements ;  but  he  must  plead  these  mat- 
ters specifically  and  allege  all  necessary  facts  and  figures.129 

§  232.  The  Bill  of  Complaint  can  be  drawn  in  the  following 
form: 

FORM  OF  BILL  OF  COMPLAINT 

State  of 

In  the  Circuit  Court  for  the  County  of In  Chancery. 

John  Doe  and  Mary  Doe, 

Plaintiffs, 
vs. 
Richard  Roe, 

Defendant. 

TO  THE  CIRCUIT  COURT  FOR  THE  COUNTY  OF.. 

John  Doe  and  Mary  Doe,  plaintiffs,  herein,  respectfully 
show  unto  this  Honorable  Court: 

1.  That  these  plaintiffs  being  the  owners  in  fee  of  the  fol- 
lowing described  real  estate:   (here  describe  real  estate)  and 

125.  Wellboon  v.  Tiller,  10  Ala.  128.  McKenzie  v.  Call,  176  Mich. 
305.  198. 

126.  Paschal  v.  Hudson  (Tex.),  129-  Fountain  v.  Semi-Tropic 
169  S.  W.  911.  Land  Co-  "  Cal-  677>  34  Pac-  4i)7: 


127.  Chaney  v.  Coleman,  77  Tex. 
100,  142  S.  W.  370. 


Ray  v.  Haviland,  72  Ind.  364; 
Walker  (Iowa),  61  N.  W.  930; 
Barnes  v.  Gilmore,  6  N.  Y.  Civ.  Proc. 
R.  286. 


516  THE  LAW  OF  LAND  CONTRACTS  [§  232 

also  being  the  owners  of  a  large  amount  of  personal  property 
consisting  of:  (here  describe  stock)  of  the  estimated  value  of 

,  upon  which  farm  the  plaintiffs 

lived  and  conducted  a  farming  business,  were  induced,  on  the 

day  of ,  A.  D.  19 ,  and  prior  thereto,  by 

Richard  Roe  of to  exchange  said  farm  and  personal 

property  thereon  for  the  following  described  property,  in  the 

City  of ,   said  county,   and   state,   namely:     (here 

describe  property)  and  also  induced  these  plaintiffs  to  enter 
into  a  land  contract  for  the  purchase  of  the  property  last 

above  described,  for  the  sum  of ; 

the  sum  of.. being  credited 

to  these  plaintiffs  on  said  contract,  being  the  estimated  value 
of  the  real  estate  and  personal  property  first  above  described 
belonging  to  these  plaintiffs  and  the  balance  payable  at  the 

rate  of per  month  as  per  said  contract,  a  true  copy 

of  which  is  hereto  attached  and  marked  exhibit  "A"  and  made 
a  part  of  this  Bill  of  Complaint. 

2.  That  for  the  purpose  of  inducing  these  plaintiffs  to  ex- 
ecute a  deed  of  said  farm  and  bill  of  sale  of  said  farm  property 
to  said  defendant,  and  to  enter  into  said  land  contract  for 
the  purchase  of  the  property  last  above  described,  said  defend- 
ant Richard  Roe  falsely,  deceitfully  and  fraudulently  repre- 
sented and  pretend  that  the  real  estate  last  above  described 

was  worth ,  and  that  the  said  property  could  sell, 

at  any  time,  in  the  market  for  more  than in  cash, 

and  that  he,  defendant  Richard  Roe,  could  sell  the  same  in  the 

market  for  cash  for and  more  in days 

time;  that  the  net  yearly  rentals  from  said  property  was 

and  upwards  and  that  the  same  were  and  could  be 

rented  so  as  to  yield  a  net  income  of and  upwards 

per  year  after  paying  all  expenses ;  that  the  expense  of  heating 
the  building  thereon,  the  same  being  an  apartment  house, 
would  not  exceed  the  sum  of and  that  the  total  ex- 
pense connected  with  said  apartment  house  would  not  exceed 

the  sum  of ,  and  that  all  the  apartments  were  then 

rented  for per  month  each.     That  these  plaintiffs 

not  being  familiar  with  the  value  of  property  in  the  City  of 
and  having  no  occasion  to  doubt  said  statements 


§  232 J  FRAUDULENT  MISREPRESENTATIONS  517 

of  said  defendants,  relied  thereon  and  were  induced  thereby  to 
make  such  exchange  of  property  and  to  enter  into  the  said 
land  contract,  as  above  described. 

3.  That  these  plaintiffs,  since  making  said  exchange  of  said 
property  and  entering  into  said  land  contract,  are  now,  on  to- 

wit:  the day  of ...,  A.  D.  19 ,  informed 

and  believe  and  charge  the  truth  to  be  that  the  said  last  above 
described  real  estate,  was  not  at  the  time  said  representations 

were  made,  worth and  that  the  same  was  not  worth 

to  exceed ,  and  could  not  be  sold  in  the  market  for 

;  that  the  net  yearly  rental  from  said  property  was 

not and  would  not  exceed .;  that  said 

apartments  were  not  and  could  not  be  rented  so  as  to  pay  a 
yearly  income  of and  upwards  after  paying  all  ex- 
penses ;  but  plaintiffs  allege  that  the  income  therefrom  would 
not  exceed after  paying  all  expenses;  that  the  an- 
nual expense  of  heating  said  apartment  house  and  the  payment 
of  the  annual  taxes  and  other  expenses  on  said  property  has 

amounted  to  a  sum  much  in  excess  of and  that  the 

actual  amount  is  more  than  twice  that  sum;  that  said  apart- 
ments were  not,  at  the  time,  all  rented  for per  month, 

and  that  the  said  defendant  also  made  other  false  and  fraudu- 
lent representations  in  respect  to  said  property  which  were 
relied  upon  by  these  plaintiffs. 

4.  That  plaintiffs  further  show  that  they  stand  ready  and 
willing  to  pay  to  said  defendants  all  such  sums  as  may  be 
found  to  be  legally  and  equitably  due  to  said  defendants,  if 
any,  and  to  surrender  possession  of  said  apartment  house  to 

the  said  defendants;  these  plaintiffs  having  on  the 

day  of ,  A.  D.  19 ,  given  notice  to  the 

said  defendant  that  possession  of  the  said  apartment  house 
would  no  longer  be  held  by  these  plaintiffs,  and  the  said  de- 
fendant has  refused  to  accept  the  offer  of  these  plaintiffs  to 
surrender  possession  of  said  apartment  house. 

5.  These  plaintiffs  further  show  that  the  said  defendant, 
Richard  Roe,  is  attempting  to  sell  and  dispose  of  the  said  real 
estate  secured  from  these  plaintiffs,  which  was  credited  in  the 

sum  of upon  said  land  contract  for 

the  purchase  of  said  apartment  house,  and  also  to  dispose  of 


518  THE  LAW  OF  LAND  CONTRACTS  [§  232 

his  interest  in  said  apartment  house  to  the  injury  of  these 
plaintiffs  unless  he  is  restrained  from  so  doing  by  the  injunc- 
tion of  this  Court. 

6.  These  plaintiffs  further  show  that  they  have  no  remedy 
against  said  defendant,  save  in  a  court  of  equity  and  to  the 
end  that  said  Richard  Roe,  defendant  in  this  suit,  may: 

(1)  Make  full,  direct  and  perfect  answer  to  all  and  singular 
the  matters  hereinbefore  stated  and  charged. 

(2)  That  the  said  land  contract  between  said  plaintiffs  and 
said  defendant  be  set  aside  and  declared  null  and  void  for 
fraud. 

(3)  That  the  said  plaintiffs  recover  from  said  defendants 

the  sum  of dollars  paid  on  said  land 

contract,  as  appears  by  the  endorsements  thereon,  and  the 
moneys  expended  on  said  apartment  house,  with  interest,  less 
a  fair  rental  value  for  the  time  said  plaintiffs  occupied  said 
apartment  house. 

(4)  That  the  amount  so  found  due  be  decreed  to  be  a  lien 
upon  the  real  estate  deeded  by  these  plaintiffs  to  said  defendant 
first  above  described  in  paragraph  one  of  this  bill,  and  credited 
on  the  land  contract  for  the  purchase  price  of  said  last  above 
described  property  described  in  paragraph  one  of  this  bill,  and 
that  said  sum  so  found  due  be  decreed  to  be  due  and  payable 
herewith  and  that  as  evidence  of  said  lien,  the  decree  entered 
in  this  cause,  or  a  certified  copy  thereof,  may  be  recorded  in 
the  office  of  the  Register  of  Deeds  for  the  County  of 

(5)  That  the  People's  Writ  of  Injunction  may  issue  out  of 
and  under  the  seal  of  this  Honorable  Court  restraining  said 
defendant  from  selling,  assigning,  or  otherwise  disposing  of 
the  real  estate  secured  from  these  plaintiffs  described  as  fol- 
lows:   ,  and  from  selling,  assigning,  or  other- 
wise disposing  of  this  interest  in  said  apartment  house  de- 
scribed more  fully,  as until  the  further 

order  of  this  court. 

(6)  That  these  plaintiffs  may  have  such  other  and  further 
relief  in  these  premises  as  shall  be  agreeable  to  equity  and 
good  conscience,  and  as  to  this  court  may  seem  meet. 


§  233J  FRAUDULENT   MISREPRESENTATIONS  519 

And  these  plaintiffs  will  ever  pray,  etc. 


Plaintiffs. 


Attorney  for  Plaintiffs. 

State  of  Michigan,   I 
County  of  Wayne,  I  ss* 

On  this day  of A.  D.  19 , 

before  me  a  Notary  Public  in  and  for  said  county,  personally 
came  the  above  named  plaintiffs,  John  Doe  and  Mary  Doe,  who 
made  oath  that  they  had  read  the  foregoing'  bill  of  complaint 
by  them  subscribed,  and  that  the  same  is  true,  except  as  to 
those  matters  stated  upon  information  and  belief,  and  as  to 
those  matters,  they  believe  it  to  be  true. 


Notary  Public,  Wayne  County,  Mich. 
My  commission  expires 

§  233.  Action  at  Law — Requisites  of  Declaration. — Chapter 
14  of  the  Judicature  Act  of  Michigan  has  made  several  impor- 
tant changes  in  the  law  regarding  declarations,  and  is  supple- 
mented by  new  rules  of  court   (1916). 

Declarations  formerly  in  common  use  "may"  be  used  in  the 
"actions  which  are  in  this  act  retained  but"  no  declaration 
shall  be  deemed  insufficient  which  shall  contain  such  informa- 
tion as  shall  reasonably  inform  the  defendant  of  the  nature  of 
the  case  he  is  called  upon  to  defend."  The  tendency  of  the 
legislature  and  courts  before  the  Judicature  Act,  to  eliminate 
the  ultra  refinements  and  technicalities  of  old  forms  of  com- 
mon law  pleading  has  been  commented  upon  at  various  times 
by  the  Supreme  Court  of  Michigan.  "Extreme  niceties  and 
technical  exactness  is  not  favored."  130 

All  pleadings  must  contain  a  plain  and  concise  statement 
without  repetition  of  the  facts  on  which  the  pleader  relies  in 
stating'his  cause  of  acton  or  defense  and  no  others.131 

Pleadings  need  not  and  should  not  allege  implications  of  fact 
or  presumptions  of  law,  nor  conclusions  of  law,  nor  irrevelant 

130.  Green  v.  Mich.  Cent.  R.  Co.,  131.  Mich.  Cir.  Ct.  Rule  21,  Sec.  2. 

168  Mich.  104-110. 


520  THE  LAW  OF  LAND  CONTRACTS  [§  233 

or  scandalous  matter,  and  must  be  as  brief  as  the  nature  of 
the  case  will  permit.132 

Dates,  sums  and  numbers  may  be  expressed  in  either  fig- 
ures or  in  words.133 

Whenever  a  cause  of  action  or  defense  is  based  upon  a  writ- 
ten instrument  or  document,  the  substance  only  of  such  in- 
strument or  document  shall  be  set  forth  in  the  pleading,  and 
a  copy  thereof  shall  be  attached  to  the  pleading  as  an  exhibit, 
which  shall  be  deemed  to  be  a  part  of  the  pleading,  or  said 
copy  may  with  like  effect  be  set  forth  in  the  pleading,  pro- 
vided such  copy  need  not  be  attached  or  set  forth  when  the 
written  instument  or  document  is  one  the  form  of  which  is 
prescribed  134  by  statute.     Profert  shall  not  be  required. 

By  the  new  rules  of  court  it  is  provided  that  "inconsistent 
causes  of  action  or  defenses  are  not  objectionable,  and  when 
the  party  is  in  doubt  as  to  which  of  two  or  more  statements  of 
facts  is  true  he  may  in  separate  counts  or  paragraphs  allege 
or  charge  facts,  although  the  same  may  be  inconsistent  with 
other  counts  or  paragraphs  in  the  same  pleading,  and  will  be 
entitled  to  such  relief  as  the  facts  may  warrant,  under  either 
count  or  paragraph.136 

"Each  count  or  division  of  a  pleading  shall,  so  far  as  prac- 
ticable, be  divided  into  paragraphs  consecutively  numbered, 
each  containing  as  near  as  may  be  a  separate  allegation.136 

"Every  pleading  shall  be  signed  by  a  party  or  his  agent  or 
attorneys."  137 

§  234.  Form. — The  Judicature  Act  expressly  provides  that 
the  forms  of  declarations  in  common  use  may  be  employed  or 
a  briefer  statement  can  be  used  containing  "Such  information 
as  shall  reasonably  inform  the  defendant  of  the  nature  of  the 
case  he  is  called  upon  to  defend." 

The  formal  parts  of  a  declaration  are :    First,  the  title,  (a) 
as  to  the  court,  and  (b)  as  to  the  time  when  filed  or  delivered; 
second,  the  venue  in  the  margin;  third,  the  commencement; 
fourth,  the  body  or  statement  of  the  cause  of  action,  consisting 
of  three  principal  parts,  viz.,  (a)  the  right,  (b)  the  injury  to 

132.  Mich.  Cir.  Ct.  Rule  21,  Sec.  3.  135.  Mich.  Cir.  Ct.  Rule  21,  Sec.  7. 

133.  Mich.  Cir.  Ct.  Rule  21,  Sec.  2.  136.  Mich.  Cir.  Ct.  Rule  21,  Sec.  2. 
134    Mich.  Cir.  Ct.  Rule  21,  Sec.  6.  137.  Mich.  Cir.  Ct.  Rule  21,  Sec.  9. 


§  235]  FRAUDULENT  MISREPRESENTATIONS  521 

such  right,  and  (c)  the  consequent  damages;  and  fifth,  the 
conclusion. 

It  is  hardly  necessary  to  comment  upon  the  title  or  venue. 
What  is  termed  the  "commencement"  of  the  declaration  fol- 
lows the  venue  in  the  margin  and  precedes  the  more  circum- 
stantial statement  of  the  cause  of  action.  In  suits  by  infants 
or  by  or  against  assignees,  executors,  administrators,  etc.,  the 
commencement  is  varied  from  the  form  employed  when  the 
parties  sue  or  are  sued  in  their  individual  capacities;  infants 
are  stated  to  sue  by  guardian  or  next  friend,  etc. 

After  the  commencement  of  the  declaration,  the  body  or 
statement  of  the  cause  of  action  follows  in  natural  order,  and 
in  every  description  of  action,  consists  of  the  right,  whether 
founded  upon  contract  or  tort  independent  of  contract,  the 
injury  to  such  right  and  the  consequent  damages. 

"The  plaintiff  in  his  declaration,  and  the  defendant  in  his 
plea,  shall  state  the  name  of  the  attorney  or  attorneys  by 
whom  they  respectively  appear.138 

In  the  conclusion  of  a  declaration  the  plaintiff  shall  set 
forth  his  claim  for  judgment  whether  for  money  or  property, 
or  both.139 

§  235.  Declaration. — The  following  brief  form  has  been 
adopted  by  the  State  Bar  Association,  and  has  been  deemed 
suitable  and  sufficient. 

STATE  OF  MICHIGAN 

In  the  Circuit  Court  for  the  County  of 

John  Doe, 
Plaintiff, 

vs. 
Richard  Roe, 
Defendant. 
To  the  Circuit  Court  for  the  County  of.. 

John  Doe,  the  plaintiff  in  this  suit,  by. ,  his 

attorney,  complains  of  Richard  Roe,  defendant  herein,  the 
said  Richard  Roe  having  been  duly  summoned  to  answer  the 
said  John  Doe,  of  a  plea  of  trespass  on  the  case,  and  says : 

138.  Mich.   Com.  Laws  1915,  Sec.  139.   Mich.   Cir.   Ct.    Rule.   Sec.    6 

12.404;  Judicature  Act  Mich.,  Chap. 
13.  Sec.  1. 


522  THE  LAW  OF  LAND  CONTRACTS  [§235 

1.  That  on... day  of ,  19 ,  the 

defendant  offered  to  sell  him  a  certain  farm  then  owned  by  the 
defendant,  described  as 

2.  That  to  induce  the  plaintiff  to  purchase  said  farm  the 
defendant  represented  to  the  plaintiff  that  the  said  farm 
was  thoroughly  tile  drained  throughout. 

3.  That  the  plaintiff  was  thereby  induced  to  purchase  said 

farm  for  $ ,  which  was  then  and  there  paid  to  the 

defendant,  relying  on  the  truth  of  the  said  representations. 

4.  That  the  said  representations  were  not  true ;  and  a  large 
part  of  said  farm  was  entirely  without  tile  drain. 

5.  That  the  defendant  made  the  said  representations  fraudu- 
lently, knowing  them  to  be  false  and  for  the  purpose  of  induc- 
ing the  plaintiff  to  purchase  the  said  farm. 

6.  In  the  alternative,  that  the  defendant,  in  consideration 
of  the  purchase  of  the  said  farm  by  the  plaintiff,  warranted 
that  the  said  land  was  thoroughly  tile  drained  throughout. 

7.  That  the  said  farm  was  not  as  warranted,  but  a  large 
part  of  it  was  wholly  without  any  tile  drains. 

8.  Wherefore  the  plaintiff  claims  a  judgment  for  the  sum 
of.— dollars. 


Attorney  for  Plaintiff. 
Business  address :  


§  236.  Pleadings  and  Briefs  Used  in  Late  Michigan  Cases 
Involving  Actions  for  Fraudulent  Misrepresentations  Both  in 
Equity  and  in  Law. — 

BANSKI  v.  MICHALSKI,  204  Mich.  15— 

(a)  Brief  Statement  of  Fact. 

(b)  Bill  of  Complaint. 

(c)  Exhibits  "A,"  "B"  and  "C"  of  Plaintiff. 

(d)  Answer. 

(e)  Decree. 

(f)  Authorities  Cited  by  Plaintiff.     Brief  for  Plaintiff. 

(g)  Authorities  Cited  by  Defendant.     Brief  for  Defendant. 
LIAN  v.  HENRY  BRADFORD  &  CO.,  209  Mich.  172— 

(a)  Brief  Statement  of  Fact. 

(b)  Declaration. 

(c)  Plea. 


§236] 


FRAUDULENT   MISREPRESENTATIONS  523 


BANSKI  v.  MICHALSKI,  204  Mich.  15— 

(a)  Brief  Statement  of  Fact. 

A  bill  of  complaint  was  filed  to  rescind  a  land  contract  for  the  fraudu- 
lent misrepresentations  made  by  the  defendant  as  to  the  ownership  and 
value  of  certain  farm  property,  the  quality  of  the  farm  soil  and  the 
defendant's  representations  as  to  the  financial  conditions  of  the  Land 
contract.  From  a  decree  for  the  plaintiff  setting  aside  and  cancelling 
the  contract,  the  defendant  appealed,  which  was  affirmed  by  the  Supreme 
Court. 

(b)  Bill  of  Complaint. 

STATE  OF  MICHIGAN 
In  the  Circuit  Court  for  the  County  of  Wayne  —  In  Chancery 
Teofil  Banski,  and 
Apolonia  Banski, 

Plaintiffs, 
v. 
Anthony  Michalski, 

Defendant.^ 

Teofil   Banaski   and   Apolonia   Banski,   of  the   City  of   Detroit   in   said 
County  of  Wayne,  plaintiffs,  represent  unto  the  court  as  follows: 

1.  That  as  husband  and  wife  on  the  21st  day  of  August,  A.  D.  191C, 
they  purchased  on  land  contract  from  Jacenty  Wrona  and  Sophia  Wrona, 
his  wife,  all  that  certain  piece  or  parcel  of  land  situate  and  being  in 
the  township  of  Hamtramck,  Wayne  County,  State  of  Michigan,  and  de- 
scribed as  follows,  to-wit:  Lots  numbered  thirteen  (13)  and  fourteen 
(14)  of  Race  &  Haass  Subdivision  of  the  westerly  one-half  (J)  of  the 
easterly  one-half  (i)  of  quarter  section  21,  ten  thousand  acre  tract,  in  the 
Village  of  Hamtramck,  Wayne  County,  Michigan,  and  that  the  plaintiffs 
still  have  the  use  and  possession  of  the  same  at  the  time  of  filing  this  bill 
of  complaint.  That  the  said  contract  and  the  assignment  thereof  herein- 
after stated  are  recorded  in  Liber  1166,  page  355,  of  Deeds,  in  the  Register 
of  Deeds  Office  for  Wayne  County.  And  the  plaintiffs  hereby  make  the 
said  contract  and  assignment,  and  the  records  thereof,  a  part  of  this  bill 
of  complaint,  and  hereby  refer  to  them  for  greater  certainty.  That  the 
said  property  consists  of  two  distinct  lots  and  a  one-family  dwelling  house 
on  one  of  the  lots.  Plaintiffs  further  say  that  the  said  property  was 
purchased  by  them  for  the  sum  of  forty-five  hundred  ($4,500.00)  dollars; 
that  they  have  thus  far  paid  on  the  land  contract  for  this  property  the 
sum  of  eighteen  hundred  fifty  ($1,850.00)  dollars;  and  that  its  present 
value  amounts  to  fifty-two  hundred  ($5,200.00)  dollars,  and  that  the  same 
has  been  occupied  as  a  homestead  by  the  said  plaintiffs  ever  since  the 
date  of  purchase. 

2.  Plaintiffs  further  represent  that  on  or  about  the  17th  day  of  June. 
A.  D.  1917,  the  said  defendant,  Anthony  Michalski,  came  to  them  and 
represented  himself  to  be  the  owner  of  a  forty  (40)  acre  tract  of  farm  land 
lying  and  being  situate  in  the  township  of  Casco,  St.  Clair  County. 
State  of  Michigan,  more  particularly  described  as  the  west  half  of  the 


524  THE  LAW  OF  LAND  CONTRACTS         [  §  236 

east  half  of  the  northwest  quarter  of  section  four  (4),  in  town  four 
north  of  range  fifteen  east,  containing  forty  acres  more  or  less;  and  that 
the  said  Anthony  Michalski  then  and  there  proposed  to  plaintiffs  an 
exchange  of  his  said  farm  property  on  the  plaintiff's  property  described 
above.  And  the  plaintiffs  further  represent  that  neither  of  them  had 
or  has  any  knowledge  of  the  quality  of  farm  soil  or  its  adaptability 
for  farming  purposes,  and  so  informed  the  said  defendant  Anthony 
Michalski. 

3.  Plaintiffs  further  represent  that  the  said  Anthony  Michalski  then 
and  there  informed  them  that  the  said  farm  land  so  owned  by  him  as 
above  described  was  formerly  owned  by  his  father  and  that  his  said 
father  had  paid  for  the  said  farm  the  sum  of  four  thousand  four  hundred 
($4,400.00)  dollars,  the  said  farm  was  mortgaged  for  the  sum  of  two 
thousand  ($2,000.00)  dollars,  and  that  there  was  a  balance  due  on  said 
farm  the  sum  of  two  thousand  ($2,000.00)  dollars;  that  the  soil  was  rich 
and  fertile  and  that  it  was  the  best  soil  to  be  found  for  raising  crops 
and  for  general  farming  purposes.  The  plaintiffs  further  state  that  they 
believed  the  representations  so  made  to  them  by  the  said  Anthony 
Michalski  to  be  true  and  relied  upon  his  honesty  and  truthfulness  in 
making  these  representations,  and  so  informed  him,  and  that  the  said 
Anthony  Michalski  then  and  there  deposited  the  sum  of  one  hundred 
($100.00)  dollars  with  plaintiff  Teofil  Banski,  as  evidence  of  good  faith, 
and  which  the  plaintiffs  now  allege  was  only  a  trick  and  scheme  to  allay 
any  suspicions  these  plaintiffs  might  have  regarding  the  honesty  and 
veracity  of  the  said  Anthony  Michalski. 

4.  And  the  plaintiffs  further  represent  that  thereafter,  on  Sunday,  June 
17,  1917,  the  said  Anthony  Michalski  with  two  other  real  estate  agents, 
named  Adam  Buczyniski  and  W.  Rybicki,  friends  of  the  said  Anthony 
Michalski,  induced  plaintiffs  to  take  an  automobile  ride  with  them  to 
the  said  farm  to  look  over  the  same.  That  the  plaintiffs  did  go  with 
them  to  the  said  farm  in  the  said  automobile  and  that  on  the  way  to 
the  said  farm,  the  said  Anthony  Michalski  and  his  said  two  friends 
uncovered  a  quart  of  whisky  and  induced  this  plaintiff  Toefil  Banski 
to  drink  about  one-third  of  this  quantity  by  the  time  they  looked  at 
the  farm.  Plaintiffs  further  say  that  while  on  this  trip  they  were 
completely  under  the  influence  of  the  said  Anthony  Michalski  and  his 
said  friends  and  that  they  had  no  opportunity  then  and  there  to  make 
an  independent  investigation  relative  to  the  value  of  the  said  farm, 
and  when  plaintiffs  requested  an  opportunity  to  visit  the  owner  of  the 
adjoining  farm  to  ascertain  the  value  of  the  farm  he  was  buying,  the 
said  Anthony  Michalski  and  his  friends  stated  to  him  that  it  would 
be  useless  to  do  so  as  they  did  not  know  who  the  owner  of  the  adjoin- 
ing farm  was,  and  then  and  there  they  again  assured  them  that  the 
farm  was  worth  the  money  as  above  stated. 

5.  Plaintiffs  further  state  that  upon  returning  from  the  farm  to  their 
home  on  the  same  day  they  were  again  told  by  the  said  Anthony 
Michalski  that  the  said  farm  was  purchased  by  his  father  for  four  thou- 


§  2361 


FRAUDULENT  MISREPRESENTATIONS  525 


sand  ($4,000.00)  dollars  and  the  live  stock  and  farming  implements  for 
the  sum  of  four  hundred  ($400.00)  dollars  and  that  it  was  then  and  at 
the  said  time  and  place  worth  the  sum  of  forty-four  hundred  ($4,400.00) 
dollars.  That  these  statements  and  representations  were  relied  upon 
by  these  plaintiffs  and  believed  by  them  to  be  true. 

6.  That  then  and  there  in  consideration  of  the  truthfulness  of  the  rep- 
resentations and  statements  so  made  by  the  said  Anthony  Michalski, 
they  agreed  to  exchange  and  trade  the  equity  in  their  land  contract  for 
the  above  described  farm,  and  plaintiff  Toefil  Banski  further  states 
that  an  oral  agreement  was  then  and  there  made  between  the  said 
parties  whereby  plaintiffs  were  to  assign  their  interest  in  their  land  con- 
tract to  the  said  Anthony  Michalski,  and  that  the  said  Anthony  Michalski 
was  to  assign  to  them  his  interest  in  the  land  contract  for  this  property, 
paying  to  them  the  difference  in  value  between  the  two  pieces  of  prop- 
erty amounting  to  the  sum  of  one  hundred  fifty  ($150.00)  dollars.  That 
the  said  Anthony  Michalski  then  drew  up  a  paper  in  the  English  lan- 
guage purporting  to  be  an  agreement  embodying  the  terms  as  agreed  up- 
on, and  that  plaintiffs  were  then  informed  by  the  said  Anthony  Michalski 
that  the  said  paper  contained  all  the  statements  and  representations  made 
by  him  as  above  stated,  and  all  the  terms  of  the  proposed  trade.  That 
these  plaintiffs  are  unable  to  read  or  write  the  English  language  and 
again  relied  upon  the  honesty  an  dtruthfulness  of  the  said  Anthony 
Michalski  and  believed  that  he  told  the  truth  regarding  the  contents 
of  the  said  paper  and  upon  his  request  the  said  plaintiff  Teofil  Banski. 
signed  the  said  agreement  for  himself  and  his  wife,  a  copy  of  which 
said  agreement  is  hereto  attached  and  marked  Exhibit  "A." 

7.  That  thereafter,  on  the  20th  day  of  June,  1917,  the  said  plaintiffs, 
still  believing  and  relying  upon  the  representations  and  statements  made 
by  the  said  Anthony  Michalski,  actually  assigned  and  transferred  all  their 
right,  title  and  interest  in  and  to  their  property  above  described  to  the 
said  Anthony  Michalski,  a  copy  of  which  assignment  is  hereto  attached 
marked  Exhibit  "B."  Plaintiffs  further  state  that  instead  of  receiving 
an  assignment  of  the  land  contract  for  the  farm  property  from  the  said 
Anthony  Michalski,  he,  the  said  Anthony  Michalski  handed  to  the 
plaintiff  Teofil  Banski  an  assignment  of  the  said  land  contract  for  the 
farm  property  signed  by  one  John  Grochala,  a  total  stranger  to  these 
plaintiffs  and  a  bill  of  sale  to  the  live  stock  and  farm  implements  to  be 
found  on  said  farm,  also  signed  by  the  said  John  Grochala. 

8.  Plaintiffs  further  state  that  upon  inquiring  of  the  said  Anthony 
Michalski  as  to  the  identity  of  the  person  who  signed  those  papers  as 
J.  Grochala,  the  said  Anthony  Michalski  informed  them  amid  a  great 
deal  of  derision  and  laughter  that  that  was  his  father  who  had  owned 
the  farm.  Plaintiffs  then  and  there  immediately  suspected  that  all 
was  not  right  with  the  deal  they  had  just  made,  and  the  plaintiff  Teofil 
Banski  further  states  that  he  immediately  went  out  to  the  said  farm 
and  inquired  of  the  adjoining  farm  owner  as  to  the  value  of  the  farm, 
land  and  quality  of  the  soil  and  was  informed  and  believes  it  to  be  true 


526  THE  LAW  0F  LAND  CONTRACTS  [§  236 

that  the  said  farm  land  is  worth  not  to  exceed  forty-five  ($45.00)  dollars 
per  acre  and  that  the  soil  is  of  very  inferior  quality  and  not  easily 
adaptable  for  farming  purposes.  That  neither  the  said  Anthony  Michal- 
ski  nor  his  father  ever  had  any  interest  in  or  title  to  the  said  property. 
Plaintiff  further  states  that  the  said  live  stock  and  farm  implements 
found  on  the  said  farm  are  not  worth  more  than  one  hundred  ($100.00) 
dollars. 

9.  Plaintiffs  further  represent  that  all  the  representations  and  state- 
ments so  made  by  the  said  Anthony  Michalski,  aforesaid,  were  false 
and  fraudulent  and  that  the  said  Anthony  Michalski  well  knew  at  the 
time  of  making  these  statements  and  representations  that  the  same  were 
false,  that  he  made  such  statements  and  representations  to  deceive  these 
plaintiffs  and  as  an  inducement  for  them  to  make  the  trade  of  their 
property  as  aforesaid;  that  they  relied  upon  the  said  statements  and 
were  induced  to  part  with  their  property.  That  by  the  means  of  said 
statements  and  representations  they  were  wrongfully  and  fraudulently 
deprived  of  their  said  property  by  the  scheming  and  machinations 
of  the  said  Anthony  Michalski.  That  the  said  farm  property  is  worth 
not  more  than  twenty-six  hundred  ($2,600.00)  dollars,  the  vendee's  interest 
being  not  more  than  six  hundred  ($600.00)  dollars;  that  the  equity  of 
these  plaintiffs  in  the  contract  assigned  by  them  to  the  said  Anthony 
Michalski  is  more  than  fifteen  hundred  ($1,500.00)  dollars  over  and  above 
the  total  consideration  received  by  them  in  the  exchange  with  the  said 
Anthony  Michalski. 

10.  Plaintiff  Apolonia  Banski  further  represents  that  she  did  not  freely 
and  voluntarily  assign  her  interest  away  in  their  said  property,  and  that 
she  had  no  voice  in  the  making  of  this  deal,  of  the  terms  or  conditions 
thereof;  that  she  was  persuaded  to  sign  her  rights  away  in  her  said 
property  by  her  said  husband  Teofil  Banski,  against  her  will  and  without 
receiving  any  benefit,  value  or  consideration  for  her  equity  in  her  said 
property.  That  she  has  received  no  money,  property,  property  rights, 
nor  anything  of  value  whatsoever  for  assigning  away  her  property  rights, 
as  will  more  fully  appear  by  the  assignment  of  the  said  farm  property, 
a  copy  of  which  is  hereto  attached  and  marked  Exhibit  "C." 

11.  Plaintiffs  further  state  that  the  said  contract  for  the  sale  of  said 
farm,  is  not  assignable  without  the  consent  of  the  vendor  therein 
endorsed  in  writing  thereon,  as.  appears  by  the  terms  of  the  said  contract 
a  copy  of  which  is  hereto  attached  and  made  a  part  hereof.  That  said 
assignment  is  neither  legal  nor  valid  and  that  it  is  absolutely  void 
and  without  effect,  not  having  been  properly  witnessed  or  acknowledged, 
according  to  the  statute  in  such  case  made  and  provided.  That  the  said 
assignment  does  not  vest  any  interest  in  the  plaintiffs  whatsoever,  the 
property  therein  being  deficiently  described  as:  The  west  half  of  the 
east  half  of  the  northwest  of  quarter  section  four,  in  town  north  of 
range  fifteen  east,  containing  forty  (40)  acres  more  or  less. 

12.  Plaintiffs  further  state  that  after  learning  of  the  deceit  and  the 
fraud  committed  upon   them  by  the   said   Anthony   Michalski,  they  did, 


v  2361  FRAUDULENT   MISREPRESENTATIONS  527 

on  June  23rd  and  July  10th,  A.  D.  1917,  tender  to  the  said  Anthony 
Michalski  the  sum  of  two  hundred  ninety  ($290.00)  dollars  together 
with  the  assignment  of  the  farm  property  and  bill  of  sale  above  de- 
scribed and  requested  the  said  Anthony  Michalski  then  and  there  to  re- 
turn to  them  the  said  land  contract  and  assignment  thereof  of  their  own 
property,  but  the  said  Anthony  Michalski  refused  to  do  so  and  still  re- 
fuses to  do  so,  and  has  started  summary  proceedings  against  plaintiffs 
before  one  Michael  Kluczynski,  Justice  of  the  Peace,  of  Hamtramck  town- 
ship to  obtain  possession  of  their  said  property  and  threatens  to  obtain 
judgment  against  plaintiffs  and  evict  them  from  their  said  homestead,  and 
plaintiffs  fear  he  will  do  so  unless  retrained  by  an  order  and  injunc- 
tion of  this  court  from  proceeding  with  the  said  lawsuit  before  the 
justice  of  the  peace  and  unless  the  said  justice  of  the  peace  be  restrained 
from  hearing  and  determining  the  said  lawsuit,  until  the  further  order 
of  the  court,  and  that  the  said  Anthony  Michalski  be  further  restrained 
from  starting  any  other  proceedings  to  obtain  the  possession  of  said 
property  or  from  actually  taking  possession  of  the  said  property  until 
the  further  order  of  this  court,  and  from  selling,  assigning,  transferring 
or  disposing  of  the  said  equity  in  the  said  land  contract. 

13.  Plaintiffs  further  state  that  they  always  have  been  ready  and 
willing  and  are  now  ready  and  willing  to  return  to  the  said  Anthony 
Michalski  all  moneys,  property  and  property  rights  received  from  him 
in  this  said  transaction,  and  hereby  make  an  offer  and  tender  to  the 
said  Anthony  Michalski  of  the  said  sum  of  two  hundred  ninety  ($290.00) 
dollars,  with  interest,  together  with  the  bill  of  sale  for  the  personal  prop- 
erty and  the  assignment  of  the  contract  for  the  farm  property. 

In  consideration  thereof  these  plaintiffs  pray: 

I.  That  the  said  Anthony  Michalski,  the  defendant  herein,  may  with- 
out oath,  his  answer  on  oath  being  waived,  full,  true,  direct  and  per- 
fect answer  make  to  all  and  singular  the  matters  herein  stated  and 
charged. 

II.  That  the  said  assignment  from  the  plaintiffs  to  said  defendant, 
may  be  vacated  and  set  aside  and  decreed  to  be  null  and  void,  as  against 
these  plaintiffs,  and  that  the  said  assignment  conveys  no  right,  title 
or  interest  in  the  said  land  or  any  part  thereof  to  the  said  defendant 
Anthony  Michalski. 

III.  That  the  said  Anthony  Michalski  may  be  decreed  to  release  to 
these  plaintiffs  all  right,  title  and  interest  which  he  claims,  or  appears 
to  have  in  the  said  land  by  color  of  the  said  assignment  or  otherwise. 

IV.  And  that  the  said  Anthony  Michalski  may  be  decreed  to  have  no 
right,  title  or  interest  whatever  in  or  to  the  said  land  or  any  part  thereof, 
and  that  these  plaintiffs  may  have  leave  to  cause  such  decree  to  be 
recorded  in  the  office  of  the  Register  of  Deeds  for  Wayne  County. 

V.  That  the  said  Anthony  Michalski  may  be  restrained  by  an  injunc- 
tion of  this  court  from  taking  any  legal  steps  to  obtain  the  possession  of 
the   premises   herein   involved,   or  from    selling,   assigning   or  disposing 


528  THE  LAW  0F  LAND  CONTRACTS  [§236 

of  the  said  property,  or  from  disposing  the  plaintiffs  of  the  said  property. 

VI.  And   that  these   plaintiffs  may  have  such  further  or  other  relief 

in  the  premises  as  shall  be  agreeable  to  equity  and  good  conscience. 

Teofil  Banski, 

Apolonia  Banski. 

Arthur  A.  Koscinski, 

Attorney  for  plaintiffs. 

State  of  Michigan, 

ss 
County  of  Wayne. 

On  this  13th  day  of  July,  A.  D.  1917,  before  me,  a  notary  public,  in 
and  for  said  county,  personally  appeared  Teofil  Banski  and  Apolonia 
Banski,  the  plaintiffs  above  named,  and  severally  made  oath  that  they 
have  heard  read  the  foregoing  bill  of  complaint  by  them  subscribed  and 
know  the  contents  thereof  and  that  the  same  is  true  of  their  own  knowl- 
edge, except  as  to  the  matters  which  are  therein  stated  to  be  on  infor- 
mation and  belief  and  as  to  those  matters  they  believe  it  to  be  true. 

Leonard  F.  Kowalski, 

Notary  Public,  Wayne  County, 
Michigan. 
My  commission  expires  Oct.  15,  1919. 
Exhibits  "A,"  "B"  and  "C"  of  plaintiff: 

Exhibit  "A" 

Hemtremck,  Mich. 

Deth  June  18-1817 

Des  is  Degremet  between  Anthony  Michalski  and  T.   Banski  and   Ts 

waw,  A.  Banski  Farm.     Known  as  the  west  half,  of,  the  east  half,  of  the 

northwest  quarter  of,  Section  Four  (4)  in  Town  Four  (4)  North  of  Range 

Fifteen  en  contoinoy  Forty  acres  more  or  lest  in  Permit  of  Witness. 

Anthony  Michalski. 

Adam  Buczynski. 

Exhibit  "B" 

In  consideration  of  one  ($1.00)  dollar  to  us  in  hand  paid  by  Anthony 
Michalski,  hereby  grant,  sell  and  convey  to  him  all  our  right,  claim  and 
interest  in  and  to  the  within  contract  and  in  to  the  premises  therein 
described,  with  all  benefits  to  be  derived  therefrom,  and  said  Anthony 
Michalski,  in  consideration  of  the  premises  hereby  assumes  and  agrees 
to  perform  and  carry  out  all  parts  of  said  contract  (not  already  per- 
formed) within  provided  to  be  performed  by  the  party  of  the  second 
part  thereto.     Dated  June  19,  1917. 

Teofil  Banski,  (Seal) 

In  presence  of  Apolonia   Banski.  (Seal) 

Jacon  Gaffke, 

W.  Rybicki. 

State  of  Michigan, ) 

'  ss 
County  of  Wayne,  f 

On  this  nineteenth  day  of  June,  one  thousand  nine  hundred  and  seven- 
teen, before  me,  a  notary  public  in  and  for  said  county,  personally  ap- 


§236 1  FRAUDULENT  MISREPRESENTATIONS  529 

peared  Teofil  Banski  and  Apolonia,  his  wife,  known  to  me  to  be  the 
persons  who  executed  the  foregoing  assignment  of  contract  and  acknowl- 
edged the  same  to  be  their  free  act  and  deed. 

Jacob  Gaffke, 
Notary  Public,  Wayne  County,  Mich. 
My  commission  expires  Oct.  22,  1919. 

Exhibit  "C" 

This  Contract,  made  the  fourth  day  of  March,  one  thousand  nine  hun- 
dred and  fourteen. 

Between  John  Karp,  Township  of  Casco,  St.  Clair  County,  Michigan, 
of  the  first  part,  and  Andy  Peklo,  of  the  City  of  Detroit,  Wayne  County, 
Mich.,  of  the  second  part,  Witnesseth,  as  follows: 

1.  Said  first  party  for  himself,  his  heirs,  executors  and  administrators, 
agrees  to  sell  to  said  second  party  all  certain  piece  or  parcel  of  land, 
situate  in  the  Township  of  Casco,  County  of  St.  Clair,  State  of  Michigan, 
known  and  described  as  the  west  half  of  the  east  half  of  the  northwest 
quarter  of  section  four,  in  town  four,  north  of  range  fifteen  east,  con- 
taining forty  acres,  more  or  less. 

In  addition  to  the  above  lands,  the  following  personal  property  is 
included:  1  gray  horse,  1  plow,  1  set  drags,  1  set  double  harness,  2 
buggies,  1  small  cultivator,  what  hay  is  now  over  the  horse  stable,  all 
the  tools  now  on  the  farm  and  all  straw  and  (forthwith,  after  full 
payment  by  said  second  party  of  the  purchase  money,  taxes,  interest 
and  insurance  hereinafter  mentioned,  and  on  the  performance  by  said 
second  party  at  the  times  and  in  the  manner  hereinafter  mentioned, 
of  all  the  conditions  herein  specified  to  be  by  him  done  and  performed) 
to  execute,  or  cause  to  be  executed,  to  said  second  party  a  good  and 
sufficient  warranty  deed  for  the  said  premises,  to  be  delivered  on  the 
surrender  of  this  duplicate  contract. 

2.  Said  second  party  for  himself,  his  heirs,  executors,  administrators 
and  assigns,  agrees  to  purchase  said  premises,  and  to  pay  therefor,  to 
said  first  party  at  his  office  or  place  of  business,  the  sum  of  two  thou- 
sand six  hundred  dollars  in  the  manner  following,  to-wit:  Six  hundred 
dollars  on  delivery  of  this  contract,  of  this  amount  five  hundred  dol- 
lars is  to  be  cash,  and  one  hundred  dollars  chattel  mortgage  on  crops 
raised  on  said  farm,  and  due  September  1,  1914,  and  the  balance  as 
follows:  March  4,  1915,  $100.00  and  interest  6  per  cent,  on  all  remaining 
unpaid.  March  4,  1916,  from  $100.00  to  $300.00  and  6  per  cent,  on  all 
remaining  unpaid.  March  4,  1917,  $300.00  or  more  and  a  like  amount 
each  year  thereafter  with  6  per  cent,  interest  on  amount  unpaid  until 
full  sum  is  paid  in  full,  with  interest  at  the  rate  of  6  per  cent,  per  annum 
until  due,  and  at  the  rate  of  6  per  cent,  per  annum  thereafter,  payable 
annually  on  the  fourth  day  of  March  in  each  year  upon  so  much  of  the 
purchase  money  as  remains  unpaid  and, 

3.  Said  second  party  also  agrees  that  during  the  life  of  this  con- 
tract, and  within  the  time  prescribed  by  law  he  will  pay  or  cause  to 
be   paid,   all   taxes   and   assessments,    ordinary    and    extraordinary,    that 


530  THE  LAW  OF  LAND  CONTRACTS  [§  236 

shall  by  lawful  authority  be  taxed  or  assessed  upon  the  said  land 
and  appurtenances,  including  the  taxes  for  the  year  A.  D.  1914  and 
that  the  payment  by  him  of  such  taxes  on  this  contract  shall  not  in 
any  case  be  considered  and  treated  as  a  payment  on  or  offset  against 
either  the  interest  or  principal  of  this  contract. 

4.  Said  second  party  further  agrees  to  cause  the  buildings  erected 
and  to  be  erected  upon  said  land  to  be  insured  and  kept  insured  against 
loss  and  damage  by  fire,  at  his  expense,  by  insurers  and  in  manner 
and  amount  approved  by  said  first  party,  and  to  either  assign  the 
policy  and  certificates  of  insurance  to  said  first  party  or  cause  the 
same  to  be  made  payable,  in  case  of  loss,  to  said  first  party  as  his 
interest  may  appear. 

5.  And  said  second  party  further  agrees  that  all  buildings,  erections 
and  improvements  now  upon  or  that  may  hereafter  be  placed  upon 
said  premises,  shall  stand  as  security  for  the  payment  of  the  moneys 
hereby  covenanted  to  be  paid  by  him  and  shall  not  be  removed  from 
said  premises  without  the  written  consent  of  said  first  party. 

6.  And  it  is  mutually  agreed,  that  in  case  said  second  party  shall 
fail  to  pay  taxes  when  due  or  effect  insurance  as  aforesaid,  said  first 
party  may  pay  such  taxes,  and  effect  such  insurance,  and  all  moneys 
paid  by  said  first  party  for  such  taxes  and  insurance,  and  all  charges 
thereon  may  be  added  to  the  amount  due  on  this  contract,  payable 
forthwith,  with  interest  at  the  rate  of  6  per  cent,  per  annum,  from  the 
date  of  such  payments  and  shall  be  treated  as  a  part  of  the  money  pay- 
able  under  this   contract. 

7.  And  in  case  default  shall  be  made  by  said  second  party,  his  heirs, 
executors,  administrators  or  assigns,  in  any  of  the  conditions  above 
stipulated  to  be  by  him  performed,  it  shall  and  may  be  lawful  for  said 
first  party  if  he  shall  see  fit,  to  declare  this  contract  void,  such  declara- 
tion to  be  made  by  brief  notice  thereof,  addressed  to  said  second 
party  and  delivered  to  him  personally,  or  deposited  in  the  post  office 
at  Lenox,  Mich.,  and  said  first  party  shall  have  the  right  to  re-enter 
upon  the  said  premises  at  any  time  after  such  default,  and  shall  be 
at  liberty  to  sell  the  same  to  any  person  or  persons  whomsoever,  with- 
out being  liable  in  law  or  equity  to  said  second  party  or  any  person 
claiming  under  him  for  any  damages  in  consequence  of  such  sale,  or 
to  return  any  payments  made  on  account  of  this  contract,  and  any  pay- 
ments that  shall  have  been  made  may  be  held  by  said  first  party  as 
stipulated  damages  for  the  non-performance  of  this  contract.  And 
said  first  party  shall  have  a  right  to  recover  all  damages  sustained  by 
reason  of  the  holding  over  of  said  second  party  without  permission; 
and,  in  case  this  contract  shall  be  so  declared  void,  the  party  of  the 
second  part  shall  thenceforth  be  deemed  a  mere  tenant  at  will  under 
said  first  party  and  shall  be  liable  to  be  proceeded  against  under  the  provi- 
sions of  the  statutes  regulating  summary  proceedings  to  recover  pos- 
session of  land,  being  Chapter  308  of  the  Compiled  Laws  of  Michigan, 


§236]  FRAUDULENT  MISREPRESENTATIONS  531 

1897,  and  the  acts  amending  the  same,  without  notice  to  quit.     Notice 
to  quit  being  hereby  expressly  waived  by  second  party. 

8.  It  is  hereby  expressly  understood  and  declared  that  time  is  and 
shall  be  deemed  and  taken  as  of  the  very  essence  of  this  contract;  and 
that  unless  the  same  shall  in  all  respects  be  complied  with  by  said 
second  party  at  the  respective  times  and  in  the  manner  above  limited 
and  specified,  that  said  second  party  shall  lose  and  be  debarred  from 
all  rights,  remedies  or  actions,  either  in  law  or  equity,  upon  or  under 
this  contract. 

9.  And  it  is  further  agreed,  that  this  is  a  duplicate  contract,  and 
that  no  assignment,  sale,  pledge  or  transfer  of  this  contract  shall  be 
of  any  validity  or  force  whatever,  or  in  any  manner  binding  upon  said 
first  party  unless  such  assignment,  sale,  pledge  or  transfer  be  made  on 
the  copy  hereof  in  the  hands  of  said  first  party  and  said  first  party  first 
consent  in  writing  upon  the  copy  hereof  in  the  hands  of  said  second 
party  to  such  assignment,  sale,   pledge  or  transfer. 

10.  Second  party  is  not  to  cut  any  standing  timber,  unless  dead,  until 
one-half  of  the  purchase  price  is  paid,  at  which  time  he  may,  if  he 
desires,  take  a  warranty  deed,  with  abstract  showing  title  clear  to 
that  date,  and  give  a  mortgage  back  for  balance  at  payments  of  three 
hundred  dollars  or  more,  with  interest  at  6  per  cent.,  payable  March  4th, 
of  each  year  thereafter;  interest  to  be  on  full  amount  then  remaining 
unpaid  at  the  time  of  each  payment. 

In  witness  whereof,  the  parties  hereto  have  hereunto  set  their  hands 
and  seals,  the  day  and  year  first  above  written. 

Andy  Peklo.         (I*  S.) 

In  presence  of 

Anthony  C.  Bykowski. 

In  consideration  of  one  dollar  and  other  valuable  consideration  to 
him  in  hand  paid,  I  hereby  sell,  assign,  transfer  and  set  over  to  Anthony 
Rekla,  all  my  right,  title  and  interest  in  and  to  the  within  contract, 
and  hereby  guarantee  to  said  Andy  Peklo,  his  heirs  and  assigns,  pay- 
ment of  the  within  contract  in  accordance  with  the  terms  thereof. 

Dated  8th  day  of  April,  A.   D.   1916. 

Andrew  Peklo  (L.  S.) 

Witnesseth  by 

F.  H.  Addison. 

Know  all  men  by  these  presents,  that  Andrew  Peklo,  a  single  man, 
party  of  the  first  part,  for  and  in  consideration  of  the  sum  of  one 
dollar  and  other  valuable  considerations  lawful  money  of  the  United 
States  of  America,  to  him  in  hand  paid  by  John  Grochala  and  Zofia 
Grochala,  his  wife,  parties  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  have  sold,  assigned  and  transferred,  and  hereby 
does  sell,  assign  and  transfer  to  the  said  parties  of  the  second  part,  all 
the  right,  title,  and  interest  of  the  said  party  of  the  first  part  in  and 
to  a  certain  real  estate  contract,  dated  the  4th  day  of  March,  in  the 
year  one  thousand  nine  hundred  and  fourteen  made  by  John   Karp,  of 


532  THE  LAW  OF  LAND  CONTRACTS  [  §  236 

Casco,  St.  Clair  County,  Mich.,  to  Andy  Peklo  and  by  said  Andy  Peklo 
duly  assigned  to  Anthony  Peklo  and  conveying  the  west  half  of  the 
east  half  of  the  northwest  quarter  of  section  four,  in  town  north  of 
range  fifteen  east,  containing  40  acres  more  or  less. 

Signed,  sealed  and  delivered  the  16th  day  of  May,  A.  D.  1917. 
State  of  Michigan, 


County  of  Wayne, 

For    value    received,    we,    the    undersigned,    hereby    sell,    assign    and 
transfer  all  our  right  and   title  in  and   to  the  land   contract  described 
herein  to  Teofil  Banski,  of  Detroit,  Michigan. 
Dated  June  20,  1917. 

John  Grochala, 
Zofia  Grochala. 
In  presence  of 

Frank  J.   Hirt. 
(d)   Defendant's  Answer. 

STATE    OF   MICHIGAN 

In  the  Circuit  Court  for  the  County  of  Wayne 

In  Chancery 

Teofil    Banski    and 

Apolonia   Banski, 

Plaintiffs,! 

\  No.  60046 
v. 

Anthony    Michalski, 

Defendant. 

1.  In  answer  to  paragraph  one  of  said  bill  of  complaint,  this  defendant, 
although  having  no  personal  knowledge  upon  the  subject,  is  informed  and 
believes  and  therefore  admits  that  the  said  plaintiffs  purchased  the  prop- 
erty described  in  said  paragraph  one,  upon  the  date  therein  alleged,  and 
also  admits  that  although  contrary  to  the  legal  rights  of  the  defendant 
herein,  that  the  said  plaintiffs  are  still  in  possession  of  said  premises. 

In  answer  to  the  remainder  of  said  paragraph  one,  this  defendant  admits 
that  the  said  land  contract  and  assignment  thereof  is  recorded  in  Liber 
11666,  at  page  355  of  Deeds  in  the  office  of  the  Register  of  Deeds  for 
said  Wayne  County.  That  the  purchase  price  of  said  property  was  $4,500, 
and  that  the  said  plaintiffs  have  paid  the  sum  of  $1,850  upon  said  property. 
This  defendant,  however,  denies  that  the  said  property  is  of  the  value  of 
$5,200,  but  on  the  contrary  avers  that  same  is  worth  approximately  $3,000. 

2.  In  answer  to  paragraph  two  of  said  bill  of  complaint,  this  defendant 
avers  that  during  the  month  of  June,  1917,  that  he  purchased  and  was 
the  owner  of  the  property  described  in  said  paragraph  two,  and  admits 
that  he  advised  the  said  plaintiffs  of  that  fact  during  certain  interviews 
with  them  in  the  said  month  of  June,  which  said  interviews  were  brought 
about  by  certain  real  estate  men,  who  were  endeavoring  to  effect  an  ex- 
change of  the  said  defendant's  farm  property  for  the  said  plaintiff's  prop- 
erty referred  to  in  paragraph  one  hereof. 


§236 1  FRAUDULENT   MISREPRESENTATIONS  533 

This  defendant,  however,  denies  that  he  proposed  an  exchange  of  said 
properties  of  the  parties  hereto,  but  in  that  connection  avers  that  said 
exchange  was  brought  about  by  said  real  estate  men,  with  whom  the 
said  plaintiffs  had  listed  their  property  for  the  purpose  of  obtaining  an 
exchange  thereof  for  any  desirable  farm  property. 

In  answer  to  the  remainder  of  said  paragraph  two,  this  defendant  posi- 
tively denies  that  the  said  plaintiffs  had  no  knowledge  of  the  quality  of 
said  farm  soil  or  its  adaptability  for  farming  purpose,  but  on  the  con- 
trary, avers  that  before  becoming  acquainted  with  the  said  plaintiffs  or 
having  any  interviews  with  them  regarding  said  farm,  that  the  said  plain- 
tiffs, in  company  with  certain  real  estate  men,  had  visited  said  farm,  care- 
fully examined  the  same,  and  decided  to  effect  a  purchase  thereof  if 
possible. 

3.  In  answer  to  paragraph  three  of  said  bill  of  complaint,  this  defend- 
ant denies  that  he  ever  informed  the  said  plaintiffs  that  said  farm  prop- 
erty was  formerly  or  at  any  time  owned  by  his  father,  or  that  his  father 
had  ever  been  the  purchaser  thereof.  This  defendant  admits,  however, 
that  during  the  said  month  of  June  there  was  a  mortgage  upon  said 
farm  property  in  the  amount  of  $2,000  which  is  still  undischarged,  but 
this  defendant  denies  that  he  had  made  any  representation  whatever 
regarding  the  richness  or  fertility  of  said  farm  soil  or  regarding  its 
adaptability  for  raising  crops,  although  this  defendant  avers  that  the 
soil  on  the  said  farm  is  of  good  quality  and  well  adapted  for  general 
farming  purposes. 

In  answer  to  the  remainder  of  said  paragraph  three,  this  defendant 
denies  that  he  made  any  representations  to  the  said  plaintiffs  regarding 
the  condition  of  said  farm,  for  the  purpose  of  effecting  a  sale  hereof  to 
the  said  plaintiffs,  or  that  they  acted  in  any  way  upon  any  representations 
made  by  this  defendant  regarding  said  farm  at  the  time  of  purchasing 
the  same.  This  defendant  admits  that  after  having  agreed  with  the 
said  plaintiffs  to  exchange  his  said  farm  property  for  the  property  owned 
by  the  said  plaintiffs,  that  he,  the  said  defendant,  made  a  deposit  of 
$100.00  upon  said  exchange,  but  denies  that  said  deposit  was  made  by  the 
said  defendant  for  the  purpose  of  effecting  any  dishonest  purpose  what- 
ever, but  that  the  said  deposit  was  made  in  good  faith  by  the  said 
defendant. 

4.  In  answer  to  paragraph  four  of  said  bill  of  complaint,  this  defendant 
denies  that  he  went  with  the  said  plaintiffs  to  see  said  farm,  and  on  the 
contrary  this  defendant  avers  that  he  never  went  with  the  said  plaintiffs 
to  said  farm  at  any  time  prior  to  the  time  that  the  exchange  of  the 
properties  of  the  parties  hereto  was  effected,  which  was  on,  to-wit,  the 
20th  day  of  June,  1917.  This  defendant  avers  however,  that  he  is  in- 
formed and  verily  believes  that  the  said  plaintiffs  had  visited  said 
farm  on  the  said  17th  day  of  June,  1917,  but  avers  that  at  the  time 
of  so  doing  the  said  plaintiffs  were  accompanied  by  the  said  Adam 
Bueczynski  and  the  said  Wrybicki,  the  real  estate  agents,  who  brought 
about  the  said  exchange  of  the  said  defendant's  farm  for  the  said  plain- 
tiffs' property  located  in  the  said  Village  of  Hamtramck;  that  in  addition 


534  THE  LAW  OF  LAND  CONTRACTS  [§236 

to  said  real  estate  agents,  their  wives,  and  families  also  accompanied 
them  on  said  trip,  but  this  defendant  avers  that  at  that  time  he  had 
no  knowledge  that  the  said  plaintiffs  contemplated  visiting  and  examin- 
ing said  farm,  and  further  avers  that  that  fact  did  not  come  to  his  knowl- 
edge until  the  following  day. 

This  defendant,  therefore,  has  no  knowledge  regarding  the  amount 
of  whisky  which  the  said  plaintiffs  drank  at  the  time  they  visited  said 
farm,  or  how  much  they  were  under  the  influence  thereof  at  any  time 
during  said  journey.  This  defendant  therefore  denies  that  at  the  time 
of  visiting  said  farm  that  the  said  plaintiffs  were  in  any  wise  under  his 
influence,  or  that  they  were  prevented  in  any  way  from  investigating 
said  farm.  Defendant  avers,  however,  in  that  connection,  that  he  is 
informed  and  verily  believes  that  at  the  time  of  visiting  said  farm,  on 
the  said  17th  day  of  June,  1917,  that  the  said  plaintiffs  made  a  thorough 
and  careful  examination  of  the  same,  and  that  upon  the  results  of  said 
examination  they,  the  said  plaintiffs,  decided  to  purchase  said  farm 
and  instructed  the  said  real  estate  agents  to  interview  the  owner  thereof 
and  to  purchase  the  same  if  possible. 

5.  In  answer  to  paragraph  five  of  said  bill  of  complaint,  this  defendant 
again  denies  that  he  had  any  interview  whatever  with  the  said  plaintiffs 
at  the  time  they  visited  the  said  farm  on  the  said  17th  day  of  June, 
1917,  or  that  he  made  any  representations  to  them  regarding  said  farm. 

6.  In  answer  to  paragraph  six  of  said  bill  of  complaint,  this  defendant 
denies  that  he  made  any  agreement  with  the  said  plaintiffs  regarding  an 
exchange  of  the  respective  properties  of  the  parties  hereto  on  the  said 
17th  day  of  June,  1917,  but  on  the  contrary,  avers  that  on  the  19th  day 
of  June,  1917,  the  said  real  estate  men  came  to  this  defendant  and 
advised  him  that  they  had  a  purchaser  for  his  said  farm,  who  was 
willing  to  exchange  an  equity  in  a  house  and  lot  in  the  Village  of  Ham- 
tramck,  in  payment  of  this  defendant's  interest  in  said  farm.  That  the 
said  real  estate  agents,  for  the  purpose  of  effecting  said  sale,  requested 
this  defendant  to  accompany  them  to  the  home  of  the  said  plaintiffs  who 
were  at  that  time  total  strangers  to  this  defendant.  That  in  accordance 
with  said  request,  this  defendant  went  with  the  said  real  estate  agents 
to  the  home  of  the  said  plaintiffs  where  he  was  introduced  to  them  and 
interviewed  them  for  the  first  time  regarding  an  exchange  of  said  prop- 
erty; that  the  said  plaintiffs  thereupon  advised  this  defendant  that  they 
were  desirous  of  exchanging  their  said  property  in  the  Village  of  Ham- 
tramck  for  defendant's  said  farm. 

That  after  considerable  discussion  regarding  the  terms  of  said  exchange, 
it  was  agreed  between  the  parties  hereto  that  this  defendant  was  to  ex- 
change his  interest  in  said  farm  to  the  said  plaintiffs  for  their  interest 
in  their  said  property  in  the  said  Village  of  Hamtramck,  and  in  addition 
thereto,  this  defendant  agreed  to  pay  the  said  plaintiffs  an  additional 
sum  of  $150.00. 

In  answer  to  the  remainder  of  said  paragraph,  this  defendant  admits 
that  at  the  time  of  said  interview,  he,  the  said  defendant,  signed  the 
said  paper  known  therein  as  Plaintiff's  Exhibit  A,   but  denies  that  he 


§236]  FRAUDULENT  MISREPRESENTATIONS  535 

made  any  false  representations  regarding  the  contents  thereof,  and 
denies  also  that  the  said  plaintiffs  or  either  of  them  signed  said  Exhihit 
A,  as  appears  upon  the  face  thereof,  the  same  being  signed  by  no  one 
but  the  defendant  herein. 

7.  In  answer  to  paragraph  seven  of  said  bill  of  complaint,  this  defend- 
ant admits  that  the  said  plaintiffs  assigned  and  transferred  their  interest 
in  their  said  land  contract  to  said  defendant,  on  the  20th  day  of  June, 
1917,  but  denies  that  said  assignment  was  made  by  the  said  plaintiffs. 
In  reliance  upon  any  statements  or  representations  which  had  been  made 
by  this  defendant.  This  defendant  also  admits  that  his  interest  in  said 
farm  was  assigned  by  the  said  John  Grochala  direct  to  the  said  plain 
tiffs,  the  reason  for  which  is  hereinafter  stated,  and  in  further  answer 
to  said  paragraph  seven,  this  defendant  alleges  as  follows: 

(a)  That  the  defendant  herein  purchased  said  farm  from  one  John 
Grachala  on,  to-wit,  the  12th  day  of  June,  1917;  that  at  the  time  of  pur- 
chasing the  same,  the  said  Grochala's  equity  therein  amounted  to  the 
sum  of  $2,500;  that  in  payment  of  said  Grochala's  equity  in  said  farm, 
this  defendant  paid  to  the  said  Grochala  the  sum  of  $50.00  in  cash  as  a 
deposit,  and  assigned  to  him  an  equity  amounting  to  $1,300,  which  this 
defendant  then  owned  in  a  certain  house  and  lot  located  in  the  Village 
of  Hamtramck,  Michigan,  and  also,  thereupon,  agreed  to  pay  to  the  said 
Grochala  the  further  sum  of  $1,200  in  cash;  that  in  consideration  thereof, 
the  said  Grochala  thereupon  executed  and  delivered  to  this  defendant 
a  bill  of  sale  of  all  personal  property  on  said  farm,  including  certain 
live  stock,  farming  implements,  etc.,  and  agreed  to  assign  to  this  defend- 
ant the  contract  of  the  said  Grochala,  under  which  he  was  purchasing 
said  farm,  upon  payment  by  this  defendant  of  the  balance  of  said  pur- 
chase price,  which  amounted  to  $1,200. 

(b)  That  the  said  bill  of  sale  to  this  defendant  was  executed  by  the 
said  Grochala  in  the  form  of  a  separate  instrument  from  the  said  Gro- 
chala's land  contract,  under  which  he,  the  said  Grochala,  was  purchasing 
said  farm. 

(c)  That  because  of  the  fact  that  this  defendant  had  not  paid  to  the 
said  Grochala  the  full  purchase  price  of  said  farm,  the  latter  had  not 
assigned  to  him  the  said  Grochala's  contract  of  purchase  of  his  said 
farm,  which  assignment  was  not  to  be  made  until  the  full  purchase  price 
of  said  farm  was  paid  by  this  defendant. 

(d)  That  at  the  time  of  the  exchange  between  the  parties  hereto  of 
their  respective  properties,  as  aforesaid,  on  the  20th  day  of  June,  1917, 
this  defendant  had  not  paid  to  the  said  Grochala  the  balance  of  the 
latter's  equity  in  said  farm,  for  which  reason  the  said  Grochala  had  not 
given  to  the  said  defendant  an  assignment  of  the  said  Grochala's  contract; 
that  because  of  that  fact  this  defendant  informed  the  said  plaintiffs 
that  the  said  farm  contract  would  be  assigned  to  them  by  the  said 
Grochala  instead  of  being  assigned  to  them  by  this  defendant;  that  at 
the  time  of  closing  of  said  deal  with  the  said  plaintiff,  Teofil  Banski, 
one  Jacob  Gaffke  and  this  defendant,  together  with  the  said  real  estate 
agents,  Buczynski,  and  the  said  Wrybicki,  all  went  together  in  an  auto- 


536  THE  LAW  0F  LAND  CONTRACTS  [§236 

mobile  to  a  bank  in  the  Village  of  Richmond,  Michigan,  which  is  in  the 
vicinity  of  said  farm  property,  where  they  met  the  said  John  Grochala 
and  thereupon  completed  an  exchange  of  said  property;  that  in  making 
said  exchange,  this  defendant  paid  to  the  said  Grochala  a  certified  check 
for  $1,000,  and  $50.00  in  cash;  that  upon  receipt  of  that  amount  from  this 
defendant,  the  said  Grochala  assigned  his  said  land  contract  upon  said 
farm  direct  to  the  said  plaintiffs,  which  was  done  at  the  request  of 
this  defendant  for  the  purpose  of  avoiding  the  execution  of  an  unnecessary 
assignment  of  said  contract,  which  would  have  been  necessary  had  the 
said  Grochala  assigned  the  same  to  this  defendant,  and  the  latter  assigned 
the  same  to  the  said  plaintiffs;  that  upon  receiving  an  assignment  of 
said  farm  contract,  the  said  plaintiffs  delivered  to  this  defendant  an 
assignment  of  their  property  in  said  Village  of  Hamtramck  and  referred 
to  in  paragraph  one  hereof.  That  at  the  time  of  closing  said  deal,  all 
of  the  parties  hereto  well  understood  and  were  perfectly  satisfied  with 
the  terms  and  conditions  thereof;  that  after  said  deal  had  been  closed, 
all  of  the  parties  hereto,  with  the  exception  of  the  said  Banski's  wife, 
drove  in  said  automobile  to  the  said  farm  at  the  request  of  the  said 
Teofil  Banski,  so  that  the  latter  could  make  certain  arrangements  regard- 
ing the  necessary  care  of  said  farm  and  the  live  stock  thereon;  that 
thereafter,  the  parties  hereto  returned  to  the  said  village  of  Hamtramck, 
and  the  said  plaintiff,  Teofil  Banski,  repeatedly  expressed  himself  as 
satisfied  with  the  said  purchase. 

8.  In  answer  to  paragraph  eight  of  said  bill  of  complaint,  this  defendant 
denies  that  he  ever  stated  to  the  said  plaintiffs  that  he  was  related  to 
the  said  Grochala,  or  that  at  the  time  of  closing  said  deal  the  said  plain- 
tiff, Teofil  Banski,  expressed  any  dissatisfaction  therewith.  This  defend- 
ant admits,  however,  as  previously  stated  that  after  closing  said  deal, 
the  parties  hereto  visited  said  farm  property,  but  denies  that  at  the 
time  of  so  doing  any  inquiries  were  made  regarding  the  value  of  said 
property. 

This  defendant  also  denies  that  he  had  no  interest  in  said  farm  prop- 
erty, and  denies  that  the  live  stock  and  farm  implements  on  said  farm 
were  not  worth  over  the  sum  of  $100.00,  but  on  the  contrary,  avers  that 
the  same  was  worth  approximately  $400.00. 

9.  In  answer  to  paragraph  nine  of  said  bill  of  complaint,  this  defendant 
denies  that  he  has  ever,  at  any  time,  made  any  false  representations  to 
the  said  plaintiffs  or  any  one  else  regarding  said  farm  property  or  that 
the  said  plaintiffs  were  in  any  wise  deceived  or  mislead  by  any  state- 
ments which  the  said  defendant  made  regarding  said  farm,  and  denies 
that  the  said  plaintiffs  have  been  defrauded  or  wronged  in  any  way 
whatsoever.  This  defendant  denies  that  the  said  farm  is  not  worth 
more  than  $2,600,  but  on  the  contrary  avers  that  the  same,  together 
with  the  personal  property  thereon,  is  worth  approximately  $5,000,  and 
denies  that  the  said  defendant's  interest  therein  were  not  over  $600.00, 
but  on  the  contrary,  avers  that  the  same  was  worth  approximately 
$2,650,  and  this  defendant  denies  that  the  equity  of  the  said  plaintiffs 
in  the  contract  assigned  by  them  to  this  defendant  exceeded  this  defend- 


§236]  FRAUDULENT   MISREPRESENTATIONS  537 

ant's  Interest  in  said  farm  in  any  amount  whatsoever,  but  on  the  con- 
trary, avers  that  the  interest  of  this  defendant  in  said  farm,  and  the  per- 
sonal property  thereon  was  worth  equally  as  much  as  the  said  plain- 
tiff's interest  in  their  said  property,  which  was  assigned  to  this  defendant. 

10.  In  answer  to  paragraph  10  of  said  bill  of  complaint,  this  defend- 
ant denies  that  the  said  plaintiff,  Apolonia  Banski,  executed  said  assign- 
ment against  her  will,  and  denies  that  she  had  no  voice  in  making  said 
deal,  but  on  the  contrary  avers  that  she  had  equally  as  much  to  say  in 
arranging  said  deal  as  any  of  the  other  parties  hereto.  This  defendant, 
however,  avers  that  he  has  no  knowledge  regarding  any  statements  made 
by  the  said  plaintiff,  Teofil  Banski,  to  the  said  wife,  or  regarding  the 
amount  of  money  or  property  which  she  may  have  received  from  her 
said  husband  for  executing  her  said  assignment. 

11.  In  answer  to  paragraph  11  of  said  bill  of  complaint,  this  defendant 
denies  that  the  assignment  of  said  contract  for  the  sale  of  said  farm  by 
the  said  Grochala  to  the  said  plaintiffs  was  irregular  or  illegal  in  any 
respect,  and  on  the  contrary,  avers  that  the  same  was  in  all  respects 
properly  executed  and  valid. 

12.  In  answer  to  paragraph  12  of  said  bill  of  complaint,  this  defendant 
admits  that  some  time  after  said  deal  had  been  closed,  that  the  said 
plaintiffs  tendered  to  him  a  small  sum  of  money  and  requested  a  return 
of  the  assignment  of  their  said  property  in  the  Village  of  Hamtramck, 
which  was  refused  by  this  defendant  as  wholly  uncalled  for  and  unjusti- 
fiable, and  for  the  further  reason  that  this  defendant  had  paid  a  consider- 
ation of  $2,650  for  the  said  plaintiffs'  interest  in  their  said  property, 
which  would  be  a  total  loss  on  his  part  if  he  should  be  required  to 
re-assign  to  said  plaintiffs  their  said  land  contract. 

In  answer  to  the  remainder  of  said  paragraph  12,  this  defendant  admits 
that  he  has  commenced  summary  proceedings  before  a  justice  of  the 
peace,  for  the  purpose  of  obtaining  possession  of  the  property  purchased 
by  him  from  the  said  plaintiffs,  and  in  that  connection  avers  that  the 
said  plaintiffs  are  now  holding  possession  of  the  said  property  contrary 
to  the  legal  rights  of  the  defendant  in  the  premises. 

13.  In  answer  to  paragraph  13  of  said  bill  of  complaint,  this  defendant 
admits  that  the  said  plaintiffs  have  offered  to  pay  him  the  sum  of 
$290.00  providing  that  he  returns  to  them  the  assignment  of  their  said 
land  contract,  but  denies  that  the  said  plaintiffs  have  ever  offered  to 
pay  to  this  defendant  the  amount  which  he  has  paid  for  the  said  plain- 
tiffs' property,  and  denies  also  that  the  said  plaintiffs  are  entitled  to  a 
re-assignment  of  their  said  contract  from  this  defendant. 

Wherefore,  this  defendant  denies  that  the  said  plaintiffs  are  entitled 

to  the  relief  prayed  in   their  said  bill  of  complaint  or  to  any   portion 

thereof,  and  prays  that  the  same  may  be  dismissed  with  reasonable  costs 

to  the  defendant  in  this  behalf  most  wrongfully  sustained. 

Anthony  MichalskI, 

Defendant. 
Charles  Bowles, 

Attorney  for  Defendant. 


538  THE  LAW  OF  LAND  CONTRACTS  [§  236 

State  of  Michigan,  ) 

County  of  Wayne,  \  SS- 

Anthony   Michalski,  being  duly  sworn,  deposes  and   says  that  he  has 

read  the  foregoing  answer  by  him  subscribed,  and  knows  the  contents 

thereof,  and  that  the  same  is  true  except  the  matters  therein  stated  to 

be  on  information  and  belief  and  as  to  those  matters  he  believes  it  to 

be  true. 

Anthony  Michalski. 

Subscribed  and  sworn  to  before  me  this  27th  day  of  August,  A.  D.  1917. 

Albert  E.  Sherman, 

Notary  Public,  Wayne  County,  Mich. 

My  commission  expires  June  7,  1921. 

(e)  Decree. 

STATE  OF  MICHIGAN 

In  the  Circuit  Court  for  the  County  of  Wayne — In  Chancery 

Teofil  Banski  and 

Apolonia  Banski, 

Plaintiffs,  [ 

)    No.  60046. 
v. 

Anthony    Michalski, 

Defendant. 

At  a  session  of  said  court  held  in  the  court  house  at  the  City  of 
Detroit,  on  the  3rd  day  of  June,  A.  D.  1918. 

This  cause  having  come  on  to  be  heard  on  the  pleadings  therein  and 
the  proofs  taken  in  said  cause  and  having  been  argued  by  counsel  for 
the  respective  parties,  and  the  court  having  duly  considered  the  same 
and  being  fully  advised  in  the  premises. 

It  is  ordered,  adjudged  and  decreed,  and  the  court  does  hereby  order, 
adjudge  and  decree,  that  the  assignment  of  the  land  contract  from 
Teofphile  Banski  and  Apolonia  Banski,  plaintiffs,  to  Anthony  Michalski, 
defendant,  mentioned  in  the  said  bill,  and  bearing  date  the  20th  day  of 
June,  A.  D.  1917,  of  the  following  described  land  and  premises:  Lots 
numbered  thirteen  (13)  and  fourteen  (14)  of  Race  &  Haass  Subdivision 
of  the  westerly  one-half  of  the  easterly  one-half  of  quarter  section  21, 
10,000  acre  tract,  in  the  Village  of  Hamtramck,  Wayne  County,  Michigan, 
and  recorded  in  the  office  of  the  Register  of  Deeds  for  the  County  of 
Wayne  in  Liber  166  of  Deeds,  on  page  355,  be  and  the  same  is  hereby 
set  aside,  vacated  and  declared  null  and  void  as  against  the  said 
plaintiffs,  their  heirs  and  assigns,  and  that  the  said  defendant,  Anthony 
Michalski  has  no  right,  title  or  interest  in  and  to  the  said  land  contract 
and  the  premises  described  therein,  by  virtue  of  the  said  assignment, 
and  that  the  said  defendant,  Anthony  Michalski,  deliver  the  said  con- 
tract forthwith  to  the  plaintiff,  Theophile  Banski. 

It  appearing  from  the  evidence  that  the  plaintiff,  Theophile  Banski, 
has  received  from  the  defendant  the  sum  of  two  hundred  ninety 
($290.00)  dollars,  together  with  the  bill  of  sale  of  personal  property  and 
an  assignment  of  a  land  contract  for  the  following  described  farm 
property:    West  one-half  of  the  east  one-half  of  the  northwest  one-quarter 


§  236]  FRAUDULENT  MISREPRESENTATIONS  539 

of  section  4  in  town  north  of  range  15  east,  containing  forty  (40)  acres, 
more  or  less,  in  the  township  of  Casco,  St.  Clair  County,  State  of  Michi- 
gan, and  the  plaintiff,  Theophile  Banski,  having  duly  tendered  the  said 
sum  of  money  and  proper  re-assignments  of  said  property  to  the  defend- 
ant, and  the  defendant  having  refused  to  accept  the  same,  it  is  ordered 
adjudged  and  decreed  and  the  court  does  hereby  order,  adjudge  and 
decree,  that  the  plaintiff,  Theophile  Banski,  make  and  execute  to  the 
defendant  a  proper  bill  of  sale  of  the  personal  property  received  from 
him,  together  with  an  assignment  of  the  land  contract  for  the  farm 
property  above  described,  and  that  the  plaintiff,  Theophile  Banski, 
deposit  these  instruments  and  the  said  sum  of  two  hundred  ninety 
($290.00)  dollars  with  the  clerk  of  this  court  for  the  use  and  benefit 
of  the  said  defendant. 

And  the  said  plaintiff  may  have  leave  to  cause  this  decree,  or  a 
certified  copy  thereof,  to  be  recorded  in  the  office  of  the  Register  of 
Deeds  for  the  said  County  of  Wayne. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  said  defend- 
ant, Anthony  Michalski,  pay  to  the  plaintiffs  or  their  attorney  the 
costs  in  this  suit  to  be  taxed  and  the  plaintiffs  have  execution  for 
the  same. 

Willis  B.  Perkins, 
(A  true  copy.)  Circuit  Judge. 

Thos.   L.   McGoldrick, 

Deputy  Clerk. 


LIAN  v.  HENRY  BRADFORD  &  CO.,  209  Mich.  172— 

DECLARATION 

(a)  Brief  Statement  of  Fact. — This  is  an  action  based  upon  the  false 
and  fraudulent  representations  made  by  defendants  to  plaintiffs,  con- 
cerning the  sale  of  certain  real  estate.  The  land  contract  entered  into 
is  not  set  out  in  the  record  in  full  because  the  same  was  lost  since 
the  trial.  The  plaintiffs  recovered  judgment  which  was  affirmed  on 
appeal. 

(b)  Declaration. 

STATE  OF  MICHIGAN 
Supreme  Court 

Carl   L.    Lian,   And    Jensine    Lian,\ 

„,   .   t.„  ,    A        „         \  Cal.  No.  28,896. 

Plaintiffs  and  Appellees,! 

_,     ..     .    I    „  /  Error  to  Newaygo. 

Henry  Bradford  &  Co.,  a  corpora-( 

,  T  „  t,      ,.      ,  \   Hon.  Jos.  Barton, 

tion,  and  Jesse  B.  Bradford,         1  . 

Defendants  and  Appellants./  ria 

State  of  Michigan.    In  the  Circuit  Court  for  the  County  of  Newaygo. 

First  Count.    The  plaintiffs  say: 

1st.  That  the  defendants  are  residents  of  the  City  of  Chicago,  in  the 


540  THE  LAW  OF  LAND  CONTRACTS  [§236 

State  of  Illinois,  and  are  engaged  in  the  sale  of  real  estate  located  in 
the  State  of  Michigan;  that  the  plaintiffs  are  former  residents  of  the 
City  of  Chicago,  State  of  Illinois,  but  now  living  and  residing  in  the 
Village  of  Newaygo,  County  of  Newaygo,  Michigan. 

2nd.  That  on,  to-wit,  the  10th  day  of  May,  1915,  the  defendants  offered 
to  sell  them  a  certain  farm  they  claimed  to  be  owned  by  the  said  defend- 
ants, described  as  the  northwest  quarter  of  the  northwest  quarter  of 
section  three,  in  township  eleven  north,  of  range  twelve  west,  and  con- 
taining forty  acres,  more  or  less,  according  to  the  government  survey 
thereof. 

3rd.  That  to  induce  the  said  plaintiffs  to  purchase  said  farm,  the  said 
defendants  represented  to  the  said  plaintiffs  that  the  said  farm  was 
located  within  a  radius  of  three  miles  from  the  Village  of  Newaygo, 
County  of  Newaygo,  State  of  Michigan;  that  the  said  farm  was  the  best 
kind  of  agricultural  land  and  that  it  would  grow  and  raise  all  kinds 
of  crops  luxuriously  and  abundantly;  that  the  said  farm  contained  a 
good  and  productive  virgin  soil,  underlaid  throughout  with  a  clay 
sub-soil;  that  the  said  farm  was  well  suited  and  adapted  to  the  diversi- 
fied farming  as  carried  on  in  western  Michigan,  and  for  fruit  raising; 
that  there  was  growing  upon  said  farm  sufficient  timber  for  the  con- 
struction of  farm  buildings  and  more  than  was  necessary  for  fuel;  that 
the  said  farm  was  well  worth  fifty  ($50.00)  dollars  per  acre  for  farming 
purposes. 

4th.  That  the  plaintiffs  were  thereby  induced  to  purchase  said  farm 
for  one  thousand  ($1,000.00)  dollars,  which  was  then  and  there  paid 
to  the  defendants,  relying  on  the  truth  of  the  said  representations. 

5th.  That  the  said  representations  were  not  true,  and  that  the  said 
farm  was  not  located  within  a  radius  of  three  miles  from  the  Village  of 
Newaygo,  but  in  truth  and  in  fact  the  said  farm  was  situated  more 
than  six  miles  from  the  Village  of  Newaygo;  that  the  said  farm  was 
not  the  best  kind  of  agricultural  land  and  that  it  would  not  grow 
and  raise  all  kinds  of  crops  luxuriously  and  abundantly;  that  the  said 
farm  did  not  contain  a  good  and  productive  virgin  soil,  underlaid 
throughout  with  clay  sub-soil;  that  the  said  farm  was  not  well  suited 
and  adapted  to  the  diversified  farming  as  carried  on  in  western  Michigan 
and  for  fruit  raising;  there  was  not  growing  upon  said  farm  suffi- 
cient timber  for  the  construction  of  farm  buildings  and  more  than  was 
necessary  for  fuel;  that  the  said  land  was  not  worth  fifty  ($50.00)  dollars 
per  acre  for  farming  purposes,  but,  in  truth  and  in  fact,  was  absolutely 
worthless. 

6th.  That  the  said  defendants  made  the  said  representations  fraudu- 
lently, knowing  them  to  be  false,  and  for  the  purpose  of  inducing  the 
plaintiffs  to  purchase  the  said  farm. 

7th.  In  the  alternative  that  the  defendants,  in  consideration  of  the  pur- 
chase of  the  same  farm  by  the  plaintiffs,  warranted  that  the  said  land 


§236] 


FRAUDULENT  MISREPRESENTATIONS  541 


was  within  a  radius  of  three  miles  of  the  Village  of  Newaygo;  that 
the  said  farm  was  the  best  kind  of  agricultural  land,  and  that  it  would 
grow  and  raise  all  kinds  of  crops  luxuriously  and  abundantly;  that  the 
said  farm  contained  a  good  and  productive  virgin  soil  underlaid  through- 
out with  clay  sub-soil;  that  the  said  farm  was  well  suited  and  adapted 
to  diversified  farming  as  carried  on  in  western  Michigan,  and  for  fruit 
raising;  that  there  was  growing  upon  said  farm  sufficient  timber  for 
the  construction  of  farm  buildings,  and  more  than  was  necessary  for 
fuel;  that  the  said  land  was  well  worth  fifty  ($50.00)  dollars  per  acre 
for  farming  purposes. 

8th.  That  the  said  farm  was  not  as  warranted,  but  was  situated  up- 
wards of  six  miles  from  the  Village  of  Newaygo;  that  the  said  farm  was 
not  the  best  kind  of  agricultural  land  and  that  it  would  not  grow  and 
raise  all  kinds  of  crops  luxuriously  and  abundantly;  that  the  said  farm 
did  not  contain  a  good  and  productive  virgin  soil,  underlaid  throughout 
with  clay  sub-soil;  that  the  same  was  not  well  suited  and  adapted  to 
diversified  farming  as  carried  on  in  western  Michigan  and  for  fruit 
raising;  that  there  was  not  growing  upon  said  farm  sufficient  timber 
for  the  construction  of  farm  buildings  and  more  than  was  necessary  for 
farming  purposes. 

9th.  That  because  of  the  said  fraudulent  representations  made  as  afore- 
said by  the  defendants,  the  plaintiffs  spent  and  paid  out  large  sums  of 
money,  to-wit,  one  thousand  ($1000.00)  dollars  paid  to  the  said  defendants 
for  said  farm;  in  packing  and  preparing  their  household  goods  and 
effects,  preparatory  to  shipment,  and  in  payment  of  freight  thereon 
from  the  City  of  Chicago,  Illinois,  to  Newaygo,  Michigan,  the  sum  of 
three  hundred  ($300.00)  dollars;  in  the  loss  of  earnings  as  a  result  of 
removal  to  the  State  of  Michigan,  five  hundred  ($500.00)  dollars. 

10.  Wherefore  the  plaintiffs  claim  a  judgment  for  the  sum  of  three 
thousand  ($3000.00)  dollars. 

Second  Count.    The  plaintiffs  say: 

1st.  That  heretofore,  to-wit,  on  the  10th  day  of  May,  1915,  and  for 
many  years  prior  thereto,  the  said  plaintiffs  lived  and  made  their  home 
in  the  State  of  Illinois  and  were  unfamiliar  and  unacquainted  with 
Michigan  farm  lands  and  the  kind  and  quality  of  the  soil  thereof,  and 
particularly  the  farming  lands  in  Newaygo  County,  Michigan. 

2nd.  That  on,  to-wit,  the  10th  day  of  May,  1915,  the  said  defendants, 
with  intent  to  cheat  and  defraud  the  said  plaintiffs  and  to  induce  said 
plaintiffs  to  purchase  of  the  defendants  the  northwest  quarter  of  the 
northwest  quarter  of  section  three  (3),  in  township  eleven  (11)  north, 
of  range  twelve  (12)  west,  and  the  said  defendants  held  out  and  repre- 
sented to  the  said  plaintiffs  that  they  were  the  owners  thereof;  that 
the  said  land  was  within  a  radius  of  three  (3)  miles  from  the  Village 
of  Newaygo;  that  the  said  farm  was  the  best  kind  of  agricultural  land, 
that  it  would  grow  and  raise  all  kinds  of  crops  luxuriously  and  abun- 
dantly; that  the  said  farm  contained  a  good  and  productive  virgin  soil. 


542  THE  LAW  °'F  LAND  CONTRACTS  [§  236 

underlaid  throughout  with  a  clay  sub-soil;  that  the  said  farm  was  well 
suited  and  adapted  to  diversified  farming  as  carried  on  in  western  Michi- 
gan, and  for  fruit  raising;  that  there  was  growing  upon  said  farm  suffi- 
cient timber  for  the  construction  of  farm  buildings  and  more  than  was 
necessary  for  fuel;  that  the  said  farm  was  well  worth  fifty  ($50.00) 
dollars  per  acre  for  farming  purposes. 

3rd.  That  plaintiffs,  because  of  the  circumstances,  were  compelled  to 
and  did  rely  wholly  upon  the  statement  and  representation  of  the  said 
defendants,  and  thereupon  and  by  means  of  said  false  and  fraudulent  rep- 
resentations of  the  said  defendants,  the  plaintiffs  were  induced  and  per- 
suaded to,  and  did,  on  the  day  and  year  aforesaid,  purchase  said  farm 
for  one  thousand  ($1000.00)  dollars,  which  was  then  and  there  paid  to 
the  defendants,  relying  on  the  truth  of  the  said  representation. 

4th.  That  the  said  representations  were  not  true,  but  were  false  and 
fraudulent;  and  that  the  said  farm  was  not  located  within  a  radius 
of  three  (3)  miles  from  the  Village  of  Newaygo,  but,  in  truth  and  in 
fact,  the  said  farm  was  situated  more  than  six  (6)  miles  from  the  said 
Village  of  Newaygo;  that  the  said  farm  was  not  the  best  kind  of 
agricultural  land  and  that  it  would  not  grow  and  raise  all  kinds  of  crops 
luxuriously  and  abundantly;  that  the  said  farm  did  not  contain  a  good 
and  productive  virgin  soil,  underlaid  throughout  with  clay  sub-soil; 
that  the  said  farm  was  not  well  suited  and  adapted  to  diversified 
farming  as  carried  on  in  western  Michigan,  and  for  fruit  raising;  that 
there  was  not  growing  upon  said  farm  sufficient  timber  for  the  con- 
struction of  farm  buildings  and  more  than  was  necessary  for  fuel; 
that  the  said  land  was  not  worth  fifty  ($50.00)  dollars  per  acre  for 
farming  purposes,  but,  in  truth  and  in  fact,  was  absolutely  worthless; 
and  that  the  said  plaintiffs,  in  the  purchase  and  sale  of  said  lands  and 
premises,  and  the  said  plaintiffs  by  means  of  the  premises  have  been 
and  are  greatly  injured  and  damaged  in  their  property. 

5th.  That  the  plaintiffs,  because  of  the  premises,  have  been  greatly 
injured  and  damaged,  and  they  have  spent  and  paid  out  large  sums  of 
money,  to-wit,  one  thousand  ($1000.00)  dollars  as  the  purchase  price 
of  said  farm,  three  hundred  ($300.00)  dollars  in  packing  and  preparing 
their  household  goods,  effects,  etc.,  preparatory  to  shipment,  and  in 
payment  of  freight  thereon,  from  the  City  of  Chicago,  Illinois,  to 
Newaygo,  Cichigan;  five  hundred  ($500.00)  dollars  in  the  loss  of  wages 
while  removing  to  Michigan. 

6th.  And  the  plaintiffs  hereby  tender  a  reconveyance  of  said  premises 
to  said  defendants  and  demand  that  the  said  defendants  reinstate  said 
plaintiffs  to  their  original  position  and  reimburse  them  for  damages 
they  have  suffered  by  reason  of  the  premises  hereinbefore  mentioned. 

7th.  The  plaintiffs  say  that  according  to  the  provisions  of  sections 
12350  and  12351,  of  the  Michigan  Compiled  Laws  of  1915,  the  said  de- 
fendants became  and  were  indebted  to  the  said  plaintiffs  in  the  sum 
of,    to-wit,    three    thousand    ($3000.00)    dollars    for    their    damages    and 


s  236]  FRAUDULENT  MISREPRESENTATIONS  f,  1:; 

injuries  aforesaid,  in  and  about  said  property  and  being  so  indebted,  the 
said  defendants  afterwards,  to-wit,  on  the  day  and  year  aforesaid,  in 
consideration  thereof,  promised  the  said  plaintiffs  to  pay  them  said 
sum  of  money  on  request,  yet  the  said  defendants  (although  often  re- 
quested) have  not  paid  the  said  sum  of  money  or  any  part  thereof  to 
the  plaintiffs,  but  have  wholly  neglected  and  still  do  neglect  and  refuse 
so  to  do,  to  the  plaintiffs'  damage  of  three  thousand  ($3000.00)  dollars, 
therefore  they  bring  suit. 

Wm.  J.  Branstrom, 

Attorney  for  Plaintiffs. 
Business  Address: 

Fremont,  Michigan. 

Amendments  to  Declaration 
On  November  21,  1918,  the  court  allowed  the  plaintiffs  to  amend  their 
declaration  in  the  following  particulars: 

(a)  The  ninth  paragraph  of  the  first  count  was  amended  to  read  as 
follows: 

9th.  That  because  of  the  said  fraudulent  representations,  made  as 
aforesaid  by  the  defendants,  the  plaintiffs  were  led  to  believe  that  the 
said  premises  so  purchased  by  them  were  worth  upwards  of  $2000.00, 
where,  in  truth  and  in  fact,  the  said  premises  were  worthless,  and  to  that 
extent  they  have  been  damaged  in  the  sum  of  $2000.00. 

(b)  The  fifth  paragraph  of  the  second  count  was  amended  to  read 
as  follows: 

5th.  That  the  plaintiffs,  because  of  the  premises  have  been  greatly 
injured  and  damaged  to  the  extent  of  $2000.00. 

(c)  The  second  count  of  the  declaration  was  further  amended  by 
striking  out  the  sixth  paragraph  thereof. 

(c)  Amended  Plea  and  Notice. 

STATE  OF  MICHIGAN 
In  the  Circuit  Court  for  the  County  of  Newaygo 
Carl   L.    Lian,   And    Jensine    Lian, 

Plaintiffs, 
v. 
Henry  Bradford  &  Company,  a  cor- 
poration; Henry  Bradford  &  Com- 
pany, a  copartnership,  consisting 
of  Jesse  B.  Bradford  and  Henry 
Bradford,  and  Jesse  B.  Bradford, 

Defendants. 

The  defendants,  Henry  Bradford  &  Company,  a  corporation,  and  Jesse 
B.  Bradford,  come  and  demand  a  trial  of  the  matters  set  forth  in  the 
plaintiffs'  declaration. 

To  the  above  named  plaintiffs:  You  will  please  take  notice  that 
the  defendants,  Henry  Bradford  &  Company,  a  corporation,  and  Jesse 
B.  Bradford,  will  show  in  their  defense  under  the  plea  of  the  general 
issue    that    the    plaintiffs    purchased    the    land    described    in    declaration 


544  THE  LAW  OF  LAND  CONTRACTS  [§236 

about  the  year  1910  from  Henry  Bradford,  doing  business  as  Henry 
Bradford  &  Company,  on  a  land  contract,  and  from  the  time  of  such 
purchase,  saM  plaintiffs  made  monthly  payments  on  said  contract  as 
were  stipulated  therein  to  Henry  Bradford  for  a  time,  and  later  to  Henry 
Bradford  &  Company,  a  corporation,  until,  to-wit,  1915,  at  which  time 
said  plaintiffs  paid  the  balance  of  said  contract  price  and  secured  a 
deed  of  the  land  from  the  defendant,  Jesse  B.  Bradford,  who  held  the 
legal  title  of  the  land  at  said  time.  That  said  plaintiffs  never  made 
any  claim  of  fraudulent  representations  on  the  part  of  these  defend- 
ants, or  either  of  them,  until  April,  1918,  although  said  plaintiffs,  during 
all  the  time  aforesaid,  well  knew  or  should  have  known  the  truth  or 
falsity  of  said  alleged  fraudulent  representations,  and  these  defendants 
will  insist  that  if  said  plaintiffs  ever  had  any  grounds  for  such  a  claim, 
they  are  guilty  of  laches  which  now  preclude  them  from  maintaining 
such  a  claim  in  this  sut. 

Cross,  Foote  &  Sessions, 

Attorneys  for  Defendants. 
Henry  Bradford  &  Co.,  and 
Jesse  B.  Bradford. 

(f)  Authorities  Relied  Upon  by  Plaintiff — Brief  for  Plaintiff. — Plain- 
tiff made  a  tender  to  defendant  a  few  days  after  the  transactions,  which 
defendant  refused  to  accept  and  the  case  of  Merrill  v.  Wilson,  66  Mich. 
243,  which  defendant  submits  in  support  of  his  contention  that  plain- 
tiffs are  not  entitled  to  a  cancellation  of  their  assignment  because 
they  cannot  place  the  defendant  in  statu  quo,  is  to  be  distinguished 
from  this  case.  In  the  Merrill  case  the  plaintiff  had  waited  a  long 
time  before  bringing  suit  and  had  affirmed  the  contract  by  bringing 
suit  against  the  defendant  for  money  due  under  the  agreement. 

The  case  of  Scandin  v.  Sherwood,  67  Mich.  230,  bears  a  striking 
resemblance  in  facts  to  the  case  at  bar.  The  parties  in  that  case 
exchanged  their  farms  on  the  representations  of  the  defendant  that 
he  owned  in  fee  and  had  a  good  title  to  the  land;  that  it  was  not 
encumbered  except  by  a  $1300  mortgage  and  was  worth  $2800.  Defend- 
ant in  addition  to  his  farm  paid  complainants  $200.00  in  money.  In 
granting  relief  to  complainants  the  court  uses  the  following  language 
(p.  231): 

"The  testimony  contained  in  the  record  before  us  proves  that  the 
foregoing  representations  as  to  title  and  value  were  false  in  all  ma- 
terial particulars  and  complainants  have  received  substantially  nothing 
for  their  house  and  lot.  The  land  was  not  worth  the  amount  of  the 
mortgage.*  *  *  We  think  complainant  ought  not  be  compelled  to  litigate 
the  title  whether  it  should  turn  out  to  be  good  or  bad.  They  were 
entitled  to  have  a  marketable  title  to  the  land  in  their  own  name  at 
the  time  the  bargain  was  closed.  They  did  not  bargain  for  a  lawsuit 
but  for  a  clear  title  and  not  having  obtained  one  are  entitled  to  have 
the  bargain  rescinded  upon  repaying  the  $200.00,  and  tender  of  a  quit- 
claim deed  for  complainants,  and  surrender  of  possession  of  the  farm." 


§236 1  FRAUDULENT  MISREPRESENTATIONS  545 

All  the  elements  constituting  fraud  have  been  established  and  the 
trial  judge  had  the  opportunity  to  see  and  hear  witnesses  and  to  form 
a  proper  estimate  of  the  character  and  value  of  the  testimony. 

The  defendant  attempted  to  show  that  the  complainant  saw  and 
examined  the  farm  before  entering  into  the  transaction  and  that  no 
deception  was  practiced.  In  this  connection  the  case  of  Starkweather 
v.  Benjamin,  32  Mich.  305,  is  in  point.  This  was  an  action  for  damages 
arising  from  alleged  misrepresentation  made  by  Starkweather  to  Ben- 
jamin, concerning  the  quantity  of  land  in  a  parcel  purchased  from 
Starkweather  and  others  for  whom  he  acted,  and  which  was  bought 
by  the  acre.  The  defense  rested  mainly  on  the  ground  that  the  pur- 
chaser saw  the  land,  and  was  as  able  to  judge  of  its  size  as  Stark- 
weather. 

Justice  Campbell  in  his  opinion  states  (p.  306) :  "We  do  not  think  the 
doctrine  that  where  both  parties  have  equal  means  of  judging  there 
is  no  fraud  applies  to  such  a  case.  The  maxim  is  equally  valid,  that 
one  who  dissuades  another  from  inquiry  and  deceives  him  to  his 
prejudice  is  responsible."  The  statements  in  this  opinion  can  be  very 
properly  applied  to  the  facts  in  the  case  at  bar.  "By  the  overwhelming 
weight  of  authority,  ordinary  prudence  and  diligence  do  not  require  a 
person  to  test  the  truth  of  representations  made  to  him  by  another  as 
of  his  own  knowledge,  and  with  the  intention  that  they  shall  be  acted 
upon,  if  the  facts  are  peculiarly  within  the  other  party's  knowledge  or 
means  of  knowledge  though  they  are  not  exclusively  so,  and  although 
the  party  to  whom  the  representations  are  made  may  have  an  oppor 
tunity  of  ascertaining  the  truth  for  himself."  Am.  &  Eng.  Enc,  Vol. 
14,  p.  120  (2nd  ed).  Citing:  Picard  v.  McCormick,  11  Mich.  68;  Eaton 
v.  Winnie,  20  Mich.  156;  Kost  v.  Bender,  25  Mich.  515;  Jackson  v.  Collins, 
39  Mich.  558;  Nowlin  v.  Snow,  40  Mich.  699;  Jackson  v.  Armstrong,  50 
Mich.  65. 

In  a  recent  case,  Bunting  v.  Creglow  (N.  D.),  168  N.  W.  Rep.  731, 
presenting  strikingly  similar  facts  to  the  case  at  bar,  the  court  in 
decreeing  a  rescission  of  the  contract  for  an  exchange  of  a  tract  of 
land,  on  the  ground  of  defendant  fraud,  uses  the  following  language: 
"The  case  is  too  plain.  When  it  appears  that  a  party  has  made  a 
contract  which  no  person  of  common  sense  would  make  if  correctly 
informed,  the  fair  presumption  is  that  he  was  induced  to  make  such  a 
contract  by  fraud  and  misrepresentation.  The  plaintiff  has  fully  com- 
plied with  all  the  conditions  necessary  to  a  rescission  of  the  deal.  Really 
it  does  seem  that  counsel  should  know  better  than  to  appeal  such  a 
case  as  this." 

(g)  Authorities  Relied  Upon  by  Defendant — Brief  for  Defendant. — 
Fraud,  sufficient  to  cancel  an  instrument,  as  is  sought  to  be  done  in 
this  case,  namely,  the  assignment  of  the  plaintiffs'  laud  contract  to 
the  defendant,  must  be  clearly  and  plainly  proven  and  relief  will  not 
be  granted  unless  the  falsity  of  the  alleged  false  reprsentations  is  cer- 
tainly proven  and  unless  the  plaintiffs  have  been  deceived  and  injured 


546  THE  LAW  0F  LAND  CONTRACTS  [§  236 

by  them.  Such  is  the  rule  laid  down  in  the  case  of  Oliver  v.  Baldwin, 
201  Mich.  362,  where  this  court,  quoting  with  approval  from  the  opinion 
rendered  in  the  case  of  Atlantic  Delaine  Company  v.  James,  94  U.  S. 
207,  214,  used  the  following  language:  "Canceling  an  executed  con- 
tract is  an  exertion  of  the  most  extraordinary  power  of  a  court  of 
equity.  The  power  ought  not  to  be  exercised  except  in  a  clear  case, 
and  never  for  an  alleged  fraud,  unless  the  fraud  be  made  clearly  to 
appear;  never  for  alleged  false  representations,  unless  their  falsity 
is  certainly  proved,  and  unless  the  complainant  has  been  deceived  and 
injured  by  them." 

It  has  also  been  held  by  this  court  to  be  elementary  that  fraud 
is  not  to  be  lightly  presumed  but  must  be  firmly  established  by  proof. 
A.  E.  Wood  &  Company  v.  Drug  Store,  192,  Mich.  456. 

BARNHARDT  v.  HAMEL,  207  Mich.  232— 

(a)  Brief  Statement  of  Fact. 

(b)  Declaration. 

(c)  Plea. 

(d)  Authorities  Cited  by  Defendants — Brief  of  Defendants. 

(e)  Authorities  Cited  by  Plaintiffs — Brief  of  Plaintiffs. 

BARNHARDT  v.  HAMEL,  207  Mich.  232— 

(a)  This  is  an  action  brought  to  recover  money  paid  to  defendants  for 
the  sale  of  certain  farm  land,  on  the  ground  that  defendants  falsely  rep- 
resented the  quality  of  the  land,  its  location,  and  value.  The  plaintiffs 
recovered  judgment  which  was  affirmed  on  appeal. 

(b)  Declaration. — State  of  Michigan,  The  Circuit  Court  for  the  County 
of  Manistee. 

Elizabeth  Barnhardt  and  her  husband,  Peter  Barnhardt  of  Manistee 
County,  State  aforesaid,  plaintiffs  herein,  by  their  attorney,  H.  F.  Hittle, 
complain  of  Adolf  Kann  and  Adolf  Hammel,  a  copartnership,  doing 
business  as  Adolf  Kann  &  Co.,  in  Manistee  county,  state  aforesaid, 
defendants  herein,  in  a  plea  of  assumpsit,  filing  their  declaration  as 
commencement  of  suit  in  accordance  with  the  statute  authorizing  the 
commencement  of  suit  by  declaration. 

1.  For  that  whereas:  Heretofore,  to-wit,  on  the  first  day  of  April, 
1915,  the  said  plaintiffs  were  the  owners  of,  and  had  a  legal  interest 
in  and  to  certain  lands  located  in,  and  were  residents  of  the  County 
of  Allen,  State  of  Indiana,  and  at  the  time  aforesaid  the  said  defend- 
ants were  engaged  in  the  business  of  buying  and  selling  real  estate 
for  profit  in  said  county  and  vicinity.  That,  to-wit,  during  the  month  of 
April,  1915,  while  the  said  plaintiffs  were  the  owners  of  the  land  above 
mentioned  and  herein  described  as  follows,  to-wit:  The  west  ten  acres  of 
the  north  half  of  the  northeast  quarter  of  section  eleven,  township 
twenty-nine  north,  range  thirteen  east,  also  the  east  half  of  the  north 
half  of  the  west  half  of  the  west  half  of  the  northeast  quarter  of  section 
eleven,  township  twenty-nine  north,  range  thirteen  east.  Excepting  there- 
from one-fourth  acre,  all  located  in  the  County  of  Allen,  State  of  Indiana. 


§  236 1  FRAUDULENT  MISREPRESENTATIONS  547 

2.  That  said  defendants,  by  and  through  their  agent,  J.  W.  Long,  did 
falsely  and  fraudulently  represent  to  the  said  plaintiffs  with  the  intent 
to  defraud  and  deceive  them. 

3.  That  the  defendants  had  a  certain  farm  in  the  County  of  Manistee, 
State  of  Michigan,  that  he,  the  said  J.  W.  Long,  would  like  to  sell 
to  the  said  plaintiffs  for  farming  purposes. 

4.  That  the  said  farm  was  suitable  for  farming  purposes. 

5.  That  all  kinds  of  crops  could  be  raised  on  the  said  farm  successfully. 

6.  That  said  farm  would  produce  just  as  good  crops  as  the  land  the 
said  plaintiffs  then  owned  in  the  State  of  Indiana. 

7.  That  the  said  farm  was  worth  just  as  much  per  acre  as  the  land  the 
said  plaintiffs  then  owned  in  the  State  of  Indiana. 

8.  That  the  said  land  had  a  sand  loam  and  a  clay  sub-soil. 

9.  That  the  said  farm  was  just  a  short  distance  from  a  German 
Lutheran  School. 

10.  All  of  which  representations  were  false  and  fraudulent  in  every 
respect,  in  that  the  said  J.  W.  Long,  the  agent  of  the  said  defendants, 
well  knew. 

11.  That  the  said  farm  was  not  all  suitable  for  farming  purposes. 

12.  That  the  said  farm  would  not  produce  corn,  wheat,  oats,  hay  and 
rye  successfully. 

13.  That  the  said  farm  would  not  produce  as  good  crops  as  the  farm 
the  said  plaintiff  owned  in  the  State  of  Indiana. 

14.  That  the  said  farm  was  worth  not  more  than  $25.00  per  acre. 

15.  That  the  said  farm  was  not  a  sand  loam  with  a  clay  sub-soil,  but 
a  light  sand  with  no  sub-soil. 

16.  That  the  said  farm  was  about  five  miles  from  the  German  Lutheran 
School. 

17.  That  the  said  J.  W.  Long,  the  agent  of  the  said  defendants  at  the 
time  of  making  the  aforesaid  false  and  fraudulent  representations  to 
the  said  plaintiffs,  well  knew  that  they  were  false  and  untrue  in  every 
respect,  and  that  they  were  made  by  the  said  J.  W.  Long  with  the 
intent  to  defraud  the  said  plaintiffs.  That  thereafter  the  said  plaintiff, 
Peter  Barnhardt,  believing  the  aforesaid  false  and  fraudulent  represen- 
tations of  the  said  J.  W.  Long  as  the  truth  and  acting  upon  them  as  the 
truth,  did,  at  the  express  request  of  the  said  J.  W.  Long,  come  to 
the  County  of  Manistee,  State  of  Michigan,  on  or  about  the  first  of 
April,  1915,  for  the  purpose  of  looking  at  the  said  farm. 

18.  That  while  the  said  Peter  Barnhardt  was  in  the  County  of  Manistee, 
state  aforesaid,  for  the  purpose  of  looking  at  the  said  farm  hereinabove 
mentioned  and  hereinafter  described  as  follows,  to-wit: 

The  south  half  of  the  southwest  quarter  and  the  southwest  quarter 
of  the  southeast  quarter  of  section  twenty-five,  township  twenty-four 
north,  range  sixteen  west,  in  the  County  of  Manistee,  State  of  Michigan; 
said  defendants  did  falsely  and  fraudulently  represent  to  the  said  Peter 
Barnhardt  with  the  intent  to  deceive  and  defraud  him. 


548  THE  LAW  OF  LAND  CONTRACTS  [§236 

19.  That  the  said  farm  would  produce  just  as  good  crops  as  the  said 
plaintiffs  then  owned  in  the  State  of  Indiana. 

20.  That  the  said  farm  was  worth  $50.00  per  acre. 

21.  That  the  low  swamp  land  on  the  back  end  of  the  farm  could 
be  drained,  that  the  said  land,  after  being  drained,  would  be  more 
valuable  for  farming  purposes  than  the  remainder  of  the  farm. 

22.  That  the  said  land  would  produce  good  crops  of  hay,  oats,  corn, 
beans,  potatoes  and  rye. 

23.  That  the  said  land  was  just  as  good  as  he  could  find  in  this  part 
of  the  state. 

24.  That  the  said  farm  was  a  sand  loam  with  clay  sub-soil. 

25.  That  the  said  farm  was  two  and  one-half  miles  from  the  German 
Lutheran  Church. 

26.  That  the  crops  from  the  farm  would  pay  the  mortgage  in  four 
years. 

27.  All  of  which  representations  were  false  and  untrue  in  every  re- 
spect, in  that  the  defendants  well  knew  that  the  said  farm  would  not 
produce  as  good  crops  as  the  farm  the  plaintiffs  then  owned  in  the 
State  of  Indiana. 

28.  That  the  high  laHd  was  worth  no  more  than  $25.00  per  acre  and 
that  the  low  swamp  was  worthless. 

29.  That  the  low  swamp  land  on  the  back  end  of  the  farm  was  worth- 
less for  farming  purposes  and  could  not  be  drained. 

30.  That  the  land  had  been  run  down  and  was  worn  out  and  would  not 
produce  good  crops  of  hay,  oats,  corn,  beans,  potatoes  or  rye. 

31.  That  the  land  was  not  as  good  as  could  be  found  in  this  part  of 
the  state  but,  on  the  contrary,  that  it  was  about  as  poor  as  could  be 
found. 

32.  That  the  said  farm  was  not  a  sand  loam  with  a  clay  sub-soil,  but 
was  a  light  sand  with  no  sub-soil. 

33.  That  the  said  farm  was  about  five  miles  from  the  German  Church. 

34.  That  the  crops  would  be  very  small  and  no  more  than  enough  to 
provide  for  the  plaintiff's  family. 

35.  That  the  said  J.  W.  Long  and  the  said  defendants  at  the  time  of 
making  the  aforesaid  false  and  fraudulent  representations  well  knew  that 
they  were  false  and  untrue  in  every  respect  and  were  made  by  the 
said  J.  W.  Long,  the  agent  of  the  said  defendants,  and  the  said  defend- 
ants with  the  intent  to  deceive  and  defraud  the  plaintiffs  herein. 

36.  That  the  said  plaintiffs  desiring  to  purchase  a  farm  for  farming 
purpose  and  having  never  been  in  this  section  of  Michigan,  and  having 
no  knowledge  of  the  value  and  quality  of  Michigan  lands  or  no  knowl- 
edge of  the  falsity  and  untruthfulness  of  the  foregoing  false  and  fraudu- 
lent representations,  but  on  the  contrary  believing  them  to  be  true,  and 
acting  upon  them  as  the  truth,  did,  on  or  about  the  18th  day  of  April, 
1915,  enter  into  a  contract  with  said  defendants  to  buy  from  them  the 
land  above  described  for  the  sum  of  $6,000.00  and  to  pay  for  the  said 
land  by  conveying  to  the  said  defendants,  their  farm  in  the  County  of 


§  236J  FRAUDULENT  MISREPRESENTATIONS  549 

Allen,  State  of  Indiana,  for  the  sum  of  $3,500.00  and  further  considera- 
tion in  the  form  of  a  mortgage  for  the  sum  of  $2,500.00  on  the  farm 
the  said  plaintiffs  were  buying  from  the  said  defendants,  whereupon  it 
was  agreed  that  the  said  defendants  were  to  convey  to  the  plaintiffs, 
by  a  good  and  sufficient  warranty  deed,  the  said  farm  last  herein  de- 
scribed. That  in  accordance  with  the  provisions  of  the  said  contract, 
the  said  plaintiffs  did  on  the  7th  day  of  July,  1915,  convey  and  war- 
rant to  the  said  defendants  their  farm  in  the  County  of  Allen,  State 
of  Indiana,  and  did  further  execute  and  deliver  to  the  said  defendants 
a  mortgage  on  the  farm,  the  said  defendants  were  selling  to  the  said 
plaintiffs,  but  that  the  said  defendant  did  not  nor  had  not  conveyed  to 
the  said  plaintiffs  the  said  farm  as  agreed  and  as  hereinabove  mentioned. 
37.  That  the  said  plaintiffs  believed  the  aforesaid  false  and  fraudulent 
representations  of  the  said  agents  of  the  said  defendants,  and  the  said  de- 
fendants as  the  truth  and  acted  upon  them  as  the  truth,  and  by  reason  of 
the  foregoing  fraudulent  conduct  of  the  said  defendants  and  their  agents 
in  the  making  of  the  aforesaid  false  and  fraudulent  representations  with 
the  intent  to  defraud  and  deceive  the  said  plaintiffs,  they,  the  said  plain- 
tiffs have  sustained  great  damage,  to-wit,  $5000.00,  said  amount  being  the 
difference  between  the  actual  value  of  the  farm  the  said  defendants  sold  to 
the  said  plaintiffs  and  the  value  the  same  farm  would  have  been  worth  had 
it  answered  to  the  representations  of  the  said  defendant,  for  which 
amount  the  said  plaintiffs  have  been  damaged  by  reason  of  the  fore- 
going false  and  fraudulent  representations  of  the  said  defendants  and 
their  agent,  whereby  a  right  of  action  has  accrued  to  the  said  plaintiffs 
and  the  said  plaintiffs  do  hereby  claim  all  right  and  benefit  they  may 
have  to  bring  and  maintain  this  action  under  and  by  virtue  of  Section 
10421  of  the  Compiled  Laws  of  1897  of  the  State  of  Michigan,  by  virtue 
of  which  law  promise  has  been  made  and  is  implied  on  the  part  of  the 
said  defendants,  to  pay  to  the  said  plaintiffs  their  just  damage  arising 
from  the  aforesaid  fraud  and  deceit,  whereby  the  said  defendants  on 
or  about  the  18th  day  of  April,  1915,  became  indebted  to  the  said  plain- 
tiffs in  the  sum  of  $500.00.  That  the  said  money,  nor  any  part  thereof 
has  not  been  paid  to  the  said  plaintiffs  although  having  been  requested 
so  to  do  and  therefore  they  bring  suit. 

1.  For  that  whereas,  the  said  defendants,  on  or  about  the  18th  day 
of  April,  1915,  became  indebted  to  the  said  plaintiffs  in  the  County  of 
Manistee,  State  of  Michigan,  in  the  sum  of  $5000.00  for  the  money  then 
and  there  received  by  the  said  defendant  for  the  use  of  the  said  plaintiff. 

And  whereas,  the  said  defendants  being  so  indebted,  afterwards,  on, 
to-wit,  the  day  and  date  last  aforesaid,  in  consideration  of  the  premises, 
promised  the  said  plaintiffs  to  pay  them  the  several  sums  of  money,  when 
they,  the  said  plaintiffs,  should  hereunto  afterwards  request  the  said 
defendants  so  to  do.  Nevertheless,  the  said  defendants,  though  often 
afterwards  requested  to  do  so,  have  not  as  yet  paid  the  several  sums 
of    money    above    mentioned,    or    any    part    thereof,    but    have    hitherto, 


550  THE  LAW  0F  LAND  CONTRACTS  [§  236 

wholly  refused,  and  still  refuse  so  to  do.     To  the  plaintiffs  damage  in 
the  sum  of  $5,000.00  and  therefore  they  bring  this  suit,  etc. 
Dated  this  15th  day  of  January,  1917. 

H.  P.  Hittle, 

Attorney  for  Plaintiff. 

(c)  Plea  and  Notice. — To  the  above  named  plaintiffs: 

Now  comes  Adolph  Kann  and  Adolph  Hammell,  the  defendants  in  the 
above  entitled  cause,  and  demand  a  trial  of  the  matters  set  forth  in  the 
declaration  of  the  plaintiffs,  filed  therein. 

Dated  February  14,  1917. 

Thomas  Smurthwaite, 

Attorney  for  Defendants. 
Business  Address: 

Manistee,  Michigan. 

To  the  above  named  plaintiffs:  Please  take  notice,  that  upon  the  trial 
of  said  cause  the  defendants  will  give  in  evidence  and  insist  under  the 
general  issue  above  pleaded,  that,  at  the  time  the  agreement  for  the  ex- 
change of  lands  set  forth  in  the  declaration  of  the  plaintiffs  was  made,  the 
defendants  had  not  by  themselves  or  any  agent  for  them,  seen  the  land 
then  owned  by  the  plaintiffs  in  Allen  County,  Indiana,  described  in  said 
declaration  and  had  never  seen  the  record  of  title  to  said  lands  and  knew 
nothing  whatever  as  to  the  condition  of  the  title  to  said  lands,  or  of  the 
location  or  value  of  said  lands,  and  at  that  time  had  no  agent  whatever  in 
the  vicinity  of  said  lands  of  whom  inquiry  could  be  made  by  them  as  to  the 
location,  condition,  or  value  of  said  lands,  or  the  condition  of  the  title 
thereto. 

That  the  plaintiff,  Peter  Barnhardt,  representing  or  claiming  to  repre- 
sent himself  and  the  plaintiff  Elizabeth  Barnhardt,  in  order  to  induce 
the  said  defendants  to  make  the  exchange  of  lands  set  forth  in  said  dec- 
laration, did  wilfully  and  falsely  represent  and  claim  to  the  said  de- 
fendants: 

1.  That  the  said  lands  of  the  plaintiffs  in  Allen  County,  Indiana,  de- 
scribed In  said  declaration,  as  aforesaid,  were  well  located  and  were 
dry  lands  of  excellent  soil  and  in  an  excellent  condition  of  cultivation 
and  that  the  buildings  thereon  were  in  excellent  condition. 

2.  That  the  said  lands  were  well  worth  in  cash  the  sum  of  thirty-five 
hundred  ($3500.00)  dollars,  and 

3.  That  they  were  subject  to  a  mortgage  of  fifteen  hundred  ($1500.00) 
dollars  only,  upon  which  all  accrued  interest  was  paid,  and  that  there 
was  no  other  mortgage  or  further  claim  or  lien  upon  or  against  the  said 
lands  for  taxes,  interest,  or  any  other  things,  over  and  above  the  said 
mortgage  for  fifteen  hundred   ($1500.00)   dollars. 

That  the  defendants,  believing  the  said  presentations  of  the  plaintiff 
to  be  true,  were  induced  thereby  to  enter  into  a  contract  for  the  exchange 
of  said  properties  or  for  the  purchase  by  them  of  the  said  lands  of  the 
plaintiffs  and  the  sale  by  them  to  the  plaintiffs  of  the  said  lands,  then 


§236]  FRAUDULENT   MISREPRESENTATIONS  551 

belonging  to  the  said  defendants  in  Manistee  County,  Michigan,  de- 
scribed in  the  said  declaration. 

That  the  said  statements  of  the  plaintiffs  so  made  to  the  defendants 
were  false  and  fraudulent,  as  the  plaintiffs  well  knew,  in  that  the  said 
lands  of  the  plaintiffs  were  not  well  located,  were  not  dry  lands,  were 
not  excellent  soil,  were  not  in  a  good  condition  of  cultivation,  and  the 
buildings  thereon  were  not  in  excellent  condition. 

That  the  said  lands  were  not  worth  in  cash  the  sum  of  thirty-five  hun- 
dred ($3500.00)  dollars,  and  were  not  worth  in  cash  at  that  time  more 
than  twenty-eight  hundred  ($2800.00)  dollars  and  were  not  worth  to  the 
said  defendants  more  than  twenty-five  hundred  ($2500.00)  dollars. 

That  the  said  lands  were  in  truth  and  in  fact  subject  to  one  mortgage  of 
of  fifteen  hundred  ($1500.00)  dollars  and  some  accrued  interest  thereon; 
to  a  second  mortgage  of  three  hundred  ($300.00)  dollars  and  accrued 
interest  thereon  to  the  amount  of  fifty-one  and  31/100  ($51.31)  dollars  and 
to  a  lien  for  taxes  to  the  extent  of  about  forty  ($40.00)  dollars. 

That  the  defendants,  believing  the  said  statements  and  representations 
of  the  plaintiffs  to  be  true,  did  at  the  City  of  Manistee,  Michigan,  authorize 
one  John  W.  Long,  who  was  then  and  there  present,  to  make  and  exe- 
cute a  land  contract  for  and  in  behalf  of  the  defendants  to  the  plaintiffs 
for  the  sale  of  the  said  lands  of  the  defendants  to  the  plaintiffs,  upon 
receiving  from  the  plaintiff,  a  good  and  sufficient  warranty  conveying 
to  the  said  Adolph  Kann  for  the  defendants  the  said  lands  of  the  plain- 
tiffs, and  to  allow  the  said  plaintiffs  the  said  sum  of  thirty-five  hundred 
($3500.00)  dollars  for  their  said  lands  less  the  amount  of  the  mortgage 
upon  the  same  for  fifteen  hundred  ($1500.00)  dollars,  as  represented  by 
the  plaintiffs. 

That  on,  to-wit,  the  20th  day  of  April,  the  said  John  W.  Long,  acting 
for  the  said  defendants,  as  aforesaid,  and  the  plaintiffs  did  make  and 
execute  a  land  contract  in  the  following  words  and  figures: 

This  agreement  entered  into  by  and  between  A.  Kann  &  Co.,  of 
Manistee,  Michigan,  as  party  of  the  first  part  and  Elizabeth  Earnhardt 
and  Peter  Barnhardt  of  Monroeville,  Ind.,  as  party  of  the  second  part. 

Witnesseth:  That  the  party  of  the  first  part  has  this  day  bargained 
and  sold  and  hereby  agrees  to  convey  to  party  of  the  second  part  by 
good  and  sufficient  warranty  deed,  signed  by  the  member  or  mem- 
bers of  this  firm,  holding  the  record  title  thereto,  their  wives  joining 
in  said  deed,  the  following  described  real  estate  in  Manistee  County. 
State  of  Michigan: 

S.  E.  %  of  S.  E.  y2  of  S.  W.  1,4,  and  the  S.  W.  %  of  S.  E.  %  of  Sec. 
25-24-16. 

It  is  hereby  agreed  that  said  party  of  the  second  part  is  to  pay  to 
said  party  of  the  first  part  as  purchase  price  of  said  real  estate,  the 
sum  of  six  thousand  ($6000.00)  dollars,  payable  as  follows:  Twenty  hun- 
dren  cash  and  four  thousand  payable  in  five  years  from  March  1,  1915,  at 
6  per  cent,  interest  from  date. 


552  THE  LAW  0F  LAND  CONTRACTS  [§236 

The  crops  growing  on  the  premises  are  reserved,  and  the  conveyance 
shall  be  made  subject  to  the  present  tenant's  rights  under  lease. 

Possession  to  be  given  on  or  before  March  1,  1915,  deed  to  be  made  and 
abstract  delivered  at  Monroeville,  R.  No.  4,  on  or  before  October  1, 
1914. 

It  is  mutually  agreed,  by  and  between  the  parties  hereto  that  the  time 
of  performance  shall  be  the  essence  of  this  contract  and  in  case  of  the 
failure  of  the  party  of  the  second  part  to  carry  out  the  stipulation  and 
agreements  upon  his  part  to  be  performed  at  the  time  and  in  the  man- 
ner hereinafter  stated,  then  this  contract  shall  become  null  and  void 
at  the  option  of  said  first  party,  and  all  sums  paid  hereunder  by  the 
party  of  the  second  part  on  the  contract  shall  be  by  him  forfeited  and 
such  payments  shall  be  retained  by  said  first  party  in  full  satisfaction 
and  in  liquidation  of  all  damages  by  him  sustained;  or  specific  per- 
formance of  this  contract  may  be  demanded  at  the  option  of  the  first 
party. 

The  party  of  the  first  part  shall  furnish  an  abstract  of  title  which 
shall,  after  examination,  be  returned  to  it  and  held  by  it  until  all  notes 
are  paid.  Should  such  an  abstract  not  show  good  title  in  fee  simple 
according  to  the  laws  of  the  states  where  said  land  is  situated,  then 
first  party  agrees  within  reasonable  time  to  make  such  abstract  show 
such  title,  either  by  creditable  affidavits  or  when  necessary  by  suit,  all 
at  its  own  expense.  This  contract  contains  all  the  agreements  between 
the  parties  hereto. 

Received  on  this  contract,  the  sum  of  two  thousand  dollars  ($2000.00) 
this  20th  day  of  April,  1914. 

A.  Kann  &  Co., 
Per  Jno.  W.  Long. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands  this 
20th  day  of  April,  1914. 

(Signed)   Peter  Barnhardt, 
(Signed)   Elizabeth  Barnhardt, 
(Signed)  A.  Kann  &  Co., 
Per  Jno.  W.  Long. 

That  the  said  John  W.  Long,  by  mistake,  did  not  describe  the  lands  of 
the  defendant  correctly  in  said  contract,  they  being  correctly  described 
in  the  declaration  of  the  plaintiffs. 

That  said  mistake  in  describing  the  said  lands,  was  mutual  between 
the  said  Long  and  the  plaintiffs,  and  the  defendants  on  the  hearing  of 
this  cause,  will  ask  the  said  court,  on  the  chancery  side  thereof,  to 
correct  the  said  mutual  mistake  and  said  contract  by  correcting  and 
writing  therein  the  correct  description  of  said  lands,  as  the  same  are 
described  in  said  declaration. 

That  the  defendants  were  induced  to  authorize  the  making  of  said 
land  contract,  solely  through  and  by  reason  of  the  false  and  fraudulent 
representations  aforesaid,  by  which  they  were  misled  and  deceived,  as 
aforesaid. 


§  236 J  FRAUDULENT  MISREPRESENTATIONS  553 

Whereby,  the  defendants  were  damaged  and  injured  in  large  sums  of 
money,  namely: 
By  the   false  and   fraudulent  representation  of  the   plaintiffs   as 

to  the  value  of  their  said  lands  in  Indiana $  700.00 

By  the  excess  of  mortgages,  interest  and  taxes  over  and  above 

the  amount  represented  and  claimed  by  plaintiffs 400.00 

Total $1100.00 

which  amount  with  interest  the  defendants  will  recoup  against  the  plain- 
tiffs and  will  demand  judgment  against  the  plaintiff  therefor,  or  that  the 
same  be  set  off  against  any  claim  the  plaintiff  may  prove  upon  the 
trial  of  this  cause  against  the  defendants,  and  that  judgment  be  rend- 
ered and  entered  in  favor  of  the  defendants  and  against  the  plaintiffs 
for  the  balance  thereof. 

Please  take  further  notice  that  upon  the  trial  of  this  cause  the  defend- 
ants will,  under  the  general  issue  above  pleaded,  give  in  evidence,  and 
insist  that  the  plaintiffs,  on  the  first  day  of  January,  1917,  were  and  now 
are,  indebted  to  the  defendants  for  moneys  had  and  received  by  the 
plaintiffs  to  and  for  the  use  of  the  defendants  in  the  sum  of  eight  hun- 
dred ($800.00)  dollars. 

And  in  a  like  sum  for  moneys  loaned  by  the  defendants  to  the  plain- 
tiffs, at  their  request. 

And  in  a  like  sum  for  moneys  before  then  paid  by  the  defendants  to 
and  for  the  use  of  the  plaintiffs  at  their  request. 

And  in  a  like  sum  for  goods,  wares  and  merchandise  before  then  sold 
by  the  defendants  to  the  plaintiffs,  at  their  request;  which  said  indebted- 
ness is  represented  as  follows: 
By  a  promissory  note  to  the  defendants  or  to   one   of  them   for 

both  as  co-partners  dated  July  25,  1915,  in  the  sum  of $351.31 

One  like  note  dated  February  25,  1916,  for 129.50 

One  like  note  dated  June  10,  1916,  for 25.00 

And  31V2  bushels  of  rye  at  $1.25  per  bushel,  sold  and  delivered 

by  the  defendants  to  the  plaintiffs  in  Sept.,  1916 39.38 

Total $545.19 

with  interest  as  provided  in  said  notes  and  by  law,  all  of  which  the 
defendants  will  set  off  against  any  claim  the  plaintiffs  may  establish 
against  them  on  the  trial  of  this  cause  and  will  demand  judgment  against 
the  plaintiffs  for  the  balance  thereof. 

Please  take  further  notice:  That  upon  the  trial  of  said  cause  the 
defendants  will  give  in  evidence  and  insist  upon  the  general  issue 
above  pleaded,  that  the  plaintiffs  in  this  cause,  if  they  ever  had  any 
claim,  whatsoever,  against  the  defendants  on  account  of  the  matters 
alleged  in  the  said  declaration,  they,  the  said  defendants,  have  waived 
the  same  by  acquiescing  in  the  said  dealings  and  said  contracts  or 
agreements  for  a  period  of  nearly  three  years  without  any  objection 
whatever  to  the  defendants,  or  any  demands  for  the  rescission  of  said 


554  THB  LAW  0F  LAND  CONTRACTS  [§  236 

contracts  or  agreements  of  for  compensation  for  any  loss  or  damage,  now 
in  said  declaration  claimed  by  them,  which  is  and  was  the  first  notice 
of  any  kind  received  by  the  defendants  from  the  plaintiffs  of  any  dis- 
satisfaction on  their  part  or  of  any  loss  or  damage  suffered  by  them 
or  of  any  claimed  false  or  fraudulent  representations  made  to  them 
by  any  person  concerning  the  lands,  they,  the  said  plaintiffs  agreed  to 
purchase  in  and  by  the  said  land  contract. 

That  in  the  meantime  and  during  all  the  period  since  the  execution  of 
said  land  contract,  the  said  plaintiffs,  being  in  possession  of  said  lands 
and  having  full  knowledge  of  all  matters  alleged  in  said  declaration,  have 
dealt  with  the  said  defendants  in  matters  concerning  the  said  lands  and 
in  other  matters  relating  thereto,  in  a  manner  wholly  inconsistent  with 
the  claims  made  in  said  declaration  against  the  defendants,  whereby,  the 
said  plaintiffs  have  wholly  waived  the  said  claims,  if  any  such  claims 
ever  existed,  and  are  now  wholly  estopped  in  law  from  asserting  said 
claims,  or  either  or  any  of  them,  against  the  defendants,  in  this  or  any 
other  action  at  law  or  in  chancery. 

Please  take  further  notice,  that  upon  the  trial  of  this  cause,  under 
the  plea  of  the  general  issue  above  pleaded,  the  defendants  will  give  in 
evidence  and  insist  that  the  plaintiffs  have  not  such  interest  in  the  lands, 
so  agreed  to  be  purchased  by  them  from  the  defendants,  as  entitles  them 
to  maintain  this  action,  inasmuch  as  the  defendants  have  received  from 
the  lands  conveyed  by  the  plaintiffs  to  them,  the  full  value  thereof,  which 
in  excess  of  the  two  mortgages  upon  said  lands,  as  aforesaid  was  ten 
hundred  and  seventy  ($1070.00)  dollars,  said  lands  being  worth  much  less 
than  was  represented  by  the  plaintiffs  as  hereinabove  stated,  and  the 
said  plaintiffs  have,  since  said  agreement  was  made,  borrowd,  had  and 
received  from  the  defendants  the  sum  of  six  hundred  and  nineteen  and 
49/100  ($619.49)  dollars  as  aforesaid,  and  have  had  and  enjoyed  the  use 
and  occupation  of  the  said  lands,  they  agreed  to  purchase  from  the  defend- 
ants as  aforesaid,  and  have  had  other  benefits  and  advantages  worth 
in  all  more  than  the  entire  interest  of  the  plaintiffs  in  said  lands  for 
all  of  which  moneys,  use  and  occupation,  benefits  and  advantages,  the 
defendants  have  no  security  whatsoever,  and  in  addition  thereto,  the 
said  plaintiffs  have  borrowed,  had  and  received  from  the  defendants,  the 
further  sum  of  three  hundred  and  seventy-five  ($375.00)  dollars  for  the 
payment  of  which  the  defendants  hold  partial  security  under  chattel 
mortgage. 

Wherefore,  the  said  plaintiffs  have  no  money  or  property  interest  what- 
ever in  said  lands  and  premises,  and  do  not  have,  hold  and  maintain 
such  an  interest  in  said  lands  as  will  entitle  or  authorize  them  to  main- 
tain this  suit  as  aforesaid. 

Dated  this  14th  day  of  February,  1917. 

Thomas  Smurthwaite, 

Attorney  for  Defendants. 
Business  Address: 

Manistee,  Michigan. 


§236]  FRAUDULENT  MISREPRESENTATIONS  -,.", 

(d)  Authorities  Cited  by  Defendants — Brief  of  Defendants. — It  is  con- 
tended by  the  defendants  that  the  agency  of  Mr.  Long  was  special  and 
his  powers  were  to  close  the  contract  only,  and  not  authorized  to  make 
any  representations  as  to  the  land.  In  Iowa  R.  Land  Co.  v.  Tehring,  126 
Iowa  1,  101  N.  W.  120,  the  averment  as  to  agency  was  that  he  "was 
agent  for  the  sale  of  their  lands  in  Greene  County,  Iowa,"  and  this  was 
held  to  be  insufficient  to  authorize  proofs  as  to  false  representations  or 
to  bind  the  alleged  principal  thereby.  The  following  cases  are  cited  as 
upholding  this  principle  of  law:  Kornemann  v.  Monahan,  24  Mich.  36; 
Grover  &  Baker  v.  S.  M.  Co.  V.  Polhemus,  34  Mich.  247;  Hirshfield  v. 
Waldron,  54  Mich.  649;  Bond  v.  Pontiac  &  Pt.  Austin  R.  R.  Co.,  62  Mich. 
643-649;  Bonnazza  v.  Joseph  Schlitz  Br.  Co.,  155  Mich.  36;  Michigan 
Lumber  Yard  v.  Blesch,  166  Mich.  470;  Gutterson  v.  Dilley,  et  al.  (Mich.), 
167  N.  W.  865. 

In  regard  to  ratification  of  the  agent's  acts,  by  receiving  and  acting 
upon  the  contract  he  was  expressly  authorized  to  make,  it  is  the  con- 
tention of  defendants  that  a  ratification  is  necessary  only  when  an 
agent  acts  without  authority,  31  Cyc.  1246,  and  has  been  applied  and 
enforced  in  the  following  cases:  Hurley  v.  Watson,  68  Mich.  531;  Deffen- 
baugh  v.  Paper  Mfg.  Co.,  120  Mich.  242;  Upton  v.  Dennis,  133  Mich.  238; 
Brown  v.  Foster,  137  Mich.  35;  Cowan  v.  Sargent  Mfg.  Co.,  141  Mich.  87; 
Pittsburgh  &  Ohio  Coal  Co.  v.  Scully,  145  Mich.  229. 

The  court  admitted  alleged  misrepresentations  as  to  the  crops  the 
plaintiffs  could  raise  upon  the  farm,  upon  the  authority  of  Yanelli  v. 
Littlejohn,  172  Mich.  91.  Defendants  contend  that  that  case  is  not 
applicable  to  this  case  for  the  reason  that  in  that  case,  the  plaintiff  was 
of  foreign  birth  and  had  not  been  a  farmer,  while  in  this  case  plaintiff 
had  been  a  farmer  all  his  life.  In  Draft  v.  Hesselsweet,  194  Mich.  604, 
the  purchaser  was  not  a  farmer  and  he  claimed  that  the  vendor  or  his 
agent  represented  "that  the  fruit  on  the  farm  would  pay  for  it  in  the 
first  year,"  and  this  court  said  that  this  "ground  of  complaint  was  not 
a  representation  of  a  present  existing  fact,  and  therefore  must  be  re- 
garded as  a  matter  of  opinion." 

The  same  rule  was  applied  in  Dieterle  v.  Ann  Arbor  Paint  Co.,  143 
Mich.  416;   Getchell  v.  Dusenberg,  145  Mich.  197. 

The  plaintiff  introduced  in  evidence,  over  the  objection  of  defendant, 
a  picture  of  what  purported  to  be  the  farm,  claimed  to  have  been  shown 
by  defendant  to  plaintiff,  defendant  contending  that  the  picture  had 
never  been  seen  by  plaintiff  before  the  trial. 

"A  purchaser  cannot  avail  himself  of  representations  in  a  circular,  the 
contents  of  which  were  not  known  to  him."  35  Cyc.  386;  Landman  v. 
Bloomer,  117  Ala.  312;  23  So.  75. 

The  plaintiffs  affirmed  the  contract  and  demand  damages  for  the 
alleged  fraud,  according  to  their  counsel,  while  the  plaintiffs  by  words 
and  acts  say,  "we  abandon  the  contract  and  the  farm,  we  refuse  to  pay 
the  mortgage."     There  cannot  be  both  an  abandonment  of  the  contract 


556  THE  LAW  OF  LAND  CONTRACTS  [§  236 

and  an  affirmance  thereof.  If  a  party  abandons  it,  his  remedy  is  suit 
for  rescission,  he  cannot  rescind  and  affirm.  39  Cyc.  2000;  Lowrie  v. 
Gourlay,  112  Mich.  641. 

The  plaintiff  lived  on  the  farm  and  worked  it  for  two  seasons  before 
bringing  this  suit.  Defendants  contend  this  was  a  waiver  and  cite  20 
Cyc.  92:  "If  the  defrauded  party  acquires  knowledge  of  the  fraud  while 
the  contract  remains  executory,  and  thereafter  does  any  act  in  perform- 
ance or  affirmance  of  the  contract,  or  exact  performance  from  the  other 
party,  he  thereby  condones  the  fraud  and  waives  his  right  of  action." 
Craig  v.  Bradley,  26  Mich.  353;  Wylie  v.  Gamble,  95  Mich.  564;  Merril 
v.  Wilson,  66  Mich.  232;  Daily  v.  King,  79  Mich.  568;  Parkyn  v.  Ford,  194 
Mich.  184. 

"Parties  claiming  to  have  been  defrauded  must  show  some  diligence 
in  their  own  behalf  and  must  move  promptly  upon  discovery  of  the 
fraud."    Campau  v.  Lafferty,  50  Mich.  114. 

Where  the  plaintiff  examines  the  land  before  purchase  no  recovery 
can  be  had.  Buxton  v.  Jones,  120  Mich.  522;  Ransier  v.  Dwyer,  149  Mich. 
487. 

(e)  Authorities  Cited  by  Plaintiff— Brief  for  Plaintiff.— The  authority 
of  an  agent  to  act  for  a  principal  is  not  determined  solely  by  the  princi- 
pal's oral  declarations  as  a  witness  as  to  the  nature  and  extent  of  the 
agent's  powers,  but  is  also  determined  from  the  situation  of  the  parties, 
their  course  of  dealing,  and  by  what  was  actually  done. 

2  C.  J.  (218,  576).  A  purchase  of  property  by  an  agent  with  or  without 
authority,  is  ordinarily  ratified  by  the  principal  accepting  and  retaining 
the  benefits  of  such  purchase  and  also  including  the  fraud  and  repre- 
sentations of  the  agent  in  the  transaction  as  inducement  to  the  purchase 
or  acquisition.    Walling  v.  Paulsen,  160  Mich.  392. 

The  admissibility  of  evidence  in  regard  to  the  crops  was  not  error, 
the  difficulty  was  with  the  soil,  not  the  elements. 

"Bearing  in  mind  that  the  declaration  alleges  that  the  land  had  been 
sold  to  plaintiff  as  good  farming  land,  and  that  it  would  grow  the  numer- 
ous crops  stated,  the  plaintiff  sought  to  show  the  extent  of  the  labor 
and  effort  made  to  produce  crops,  that  enough  could  not  be  raised  to 
support  the  family,  and  the  necessity  of  going  elsewhere  to  work,  and  the 
fact  that  the  family  had  to  be  assisted  by  others.  We  think  that  whether 
the  plaintiff  was  able  to  live  on  the  place,  and  the  amount  that  could  be 
produced  there,  were  material  questions,  as  well  as  the  efforts  made  by 
the  plaintiff  and  family  in  that  direction.  While  some  of  the  testimony 
here  complained  of  was  rather  remote  and  might  have  been  properly 
excluded,  we  do  not  think  that  its  reception  constituted  reversible  error." 
Yarnelli  v.  Littlejohn,  172  Mich.  98,  99;  Wegner  v.  Herkimer,  167  Mich. 
587,  594. 

It  is  no  defense  to  an  action  for  fraudulent  representations  made  in 
the  sale  or  exchange  of  land  that  the  party  defrauded  may  have  seen 
and  examined  the  lands.    Starkweather  v.  Benjamin,  32  Mich.  305.    Espe- 


S  2361  FRAUDULENT   MISREPRESENTATIONS  557 

cially  where  the  defrauded  party  is  a  stranger  and  is  ignorant  of  real 
estate  values  in  the  vicinity  where  the  lands  are  located.  Stoney  Creek 
Woolen  Co.  v.  Swalley,  111  Mich.  321. 

It  is  not  necessary  that  the  plaintiff  repudiate  the  contract  and  bring 
his  action  for  the  fraud  immediately  upon  discovering  the  false  repre- 
sentations. The  action  at  law  does  not  depend  upon  the  parties  being 
placed  in  statu  quo,  and  no  special  diligence  is  required  of  him  in  dis- 
covering the  fraud  or  in  presenting  his  action.  Dayton  v.  Monroe,  47 
Mich.  194;  Wegner  v.  Herkimer,  167  Mich.  587,  593;  Smith  v.  McDonald, 
139  Mich.  225;  Smith  v.  Werkheismer,  152  Mich.  177,  180;  Yarnelli  v. 
Littlejohn,  172  Mich.  91,  104;  Hutchinson  v.  Westbrook,  191  Mich.  484,  488. 

And  in  all  contraversies  not  within  the  statute,  waiver,  if  relied  on, 
is  a  question  of  fact  and  not  of  law.  Dayton  v.  Monroe,  47  Mich.  195; 
Wegner  v.  Herkimer,  167  Mich.  587. 


CHAPTER  XIV 

REAL  ESTATE  BROKERS 

STATUTORY  PROVISIONS 

LICENSING   RIGHTS,    DUTIES,   LIABILITIES 

MISCELLANEOUS 

§  237.  Definition. 

§  238.  Regulation  and  Licensing. 

§  239.  Form  of  Application  for  License  for  Real  Estate  Broker. 

§  240.  Form  of  Application  for  License  for  Business  Chance  Broker. 

§  241.  Form  of  Application  for  License  for  Real  Estate  Salesman. 

§  242.  Commission  Agreement. 

§  243.  The  Decisions  on  the  Duty  of  the  Broker. 

§  244.  When  Commission  Earned. 

§  237.  Real  Estate  Brokers. — Definition. — A  real  estate 
broker  has  been  denned  in  Michigan  by  statute  to  be  any 
person,  firm,  partnership,  association,  co-partnership  or  corpo- 
ration, who  for  a  compensation  or  valuable  consideration  sells 
or  offers  for  sale,  buys  or  offers  to  buy,  or  negotiates  the  pur- 
chase or  sale  or  exchange  of  real  estate,  or  who  leases  or  offers 
to  lease  or  rents  or  offers  for  rent  any  real  estate  or  the  im- 
provements thereon  for  others,  as  a  whole  or  partial  vocation.1 
The  same  Act  defines  a  real  estate  salesman  to  be  any  person 
employed  by  a  licensed  real  estate  broker  for  the  purposes 
above  mentioned.  It  also  defines  a  business  chance  broker  to 
be  any  person,  firm,  partnership,  association,  co-partnership 
or  corporation,  who  for  a  compensation  or  valuable  considera- 
tion sells  or  offers  for  sale,  buys  or  offers  to  buy,  leases  or 
offers  to  lease,  or  negotiates  the  purchase  or  sale  or  exchange 
of  a  business,  business  opportunity,  or  the  goodwill  of  an  exist- 
ing business  for  others  as  a  whole  or  a  partial  vocation. 

§  238.  Regulation  and  Licensing. — In  1919  an  Act  was 
passed  in  Michigan  providing  for  the  licensing  of  real  estate 
brokers  and  salesman,2  and  as  amended  in  1921,  makes  it  com- 
pulsory  for   any   person,   firm,   partnership,   association,   co- 

1.  Public    Acts,    Mich.    1921,    No.  2.  Public    Acts,    Mich.    1919,    No. 

387,  Sec.  2.  306. 


§  23')]  REAL  ESTATE  BROKERS  559 

partnership  or  corporation  doing  business  as  a  chance  broker, 
real  estate  broker  or  real  estate  salesman  to  first  obtain  a 
license.8 

The  Act  does  not  apply  to  any  person  who  is  the  owner  of 
the  real  estate,  or  to  any  person  holding  a  power  of  attorney 
from  the  owner  for  the  purposes  above  mentioned,  or  to  in- 
clude the  services  in  any  way  rendered  by  an  attorney  at  law 
in  the  performance  of  his  duties  as  such  attorney  at  law,  or 
to  any  receiver,  trustee  in  bankruptcy,  administrator  or  execu- 
tor, or  person  selling  under  order  of  court.4 

An  application  for  license  must  be  made  in  writing  to  the 
Michigan  Securities  Commission  at  Lansing,  Michigan,  on 
forms  prepared  by  the  Commission,  as  follows: 

§  239.     Application  for  License  for  Real  Estate  Broker. — 

MICHIGAN  SECURITIES  COMMISSION 
(Department  of  Real  Estate.) 
To  the  Michigan  Securities  Commission,  Lansing,  Michigan: 
In  compliance  with  Act  No.  306  of  the  Public  Acts  of  1919, 

I  (we) 

hereby  make  application  for  a  license  authorizing  me  (us)  to 
transact  the  business  of  a  REAL  ESTATE  BROKER  in  com- 
pliance with  the  law  regulating  and  licensing  such  business 
within  the  State  of  Michigan,  and  tender  the  FEE  of  $10.00 
HEREWITH. 

1.  Name  of  applicant 

(If  firm,  give  names  of  members;  if  partnership,  give  names 

of  partners ;  if  co-partnership,  association  or  corporation,  give 
officers.) 

2.  Business  address  (street  and  number) 

(City  or  town) 

(If  more  than  one  office,  give  address  of  each) 

3.  Residence  (street  and  number) 

(City  or  town) 

4.  If  a  firm,  partnership  or  corporation  designate  ONE 
MEMBER  of  said  firm,  partnership  or  corporation  to  receive 
salesman's  card  under  the  license 

3.  Public    Acts,    Mich.    1921,    No.  4.  Public    Acts,    Mich.    1921,    No. 

387.  387,  Sec.  2. 


560  THE  LAW  0F  LAND  CONTRACTS  [§  239 

5.  What  has  been  your  business  or  occupation  for  past  five 
years?  Give  places  where  continuous  for  sixty  dars  or 
more - 

6.  Give  references  other  than  endorsers  for  each  place 
stated  in  question  five 

7.  Were  you  licensed  as  a  Real  Estate  Salesman  in  1920 9 

8.  Have  you  been  in  any  litigation  over  real  estate  during 
the  past  year? 

State  nature  of  complaint 

Signed  (applicant) 

(If  applicant  is  firm  or  partnership,  signer  must  give  his  re- 
lation to  firm  or  partnership ;  if  corporation,  application  must 
be  signed  by  proper  officers.) 

Sworn  to  and  subscribed  before  me  a  notary  public  in  and 

for  the  county  of State  of  Michigan,  this 

day  of ,  192 

(Seal)    

My  commission  expires 

RECOMMENDATION 
(Two  endorsers  required.) 

We,  the  undersigned,  who  are,  and  have  been  for  a  period  of 

a  year  past,  owners  of  real  estate  in  the  county  of , 

Michigan,  do  respectfully  recommend  for  your  consideration 

the  application  of 

for  a  license  as  a  Real  Estate  Broker. 

We  do  hereby  certify  that  we  are  well  acquainted  with  the 
applicant  (s)  and  also  certify  that  he  (they)  has  (have)  a  good 
reputation  for  honesty,  integrity  and  fair  dealing,  and  that  we 
are  satisfied  that  he  (they)  is  (are)  worthy  of  the  license  for 
which  he  (they)  applies  (apply) . 

Name  - 

Address  

Name  

Address  

§  240.  Application  for  License  for  Business  Chance  Broker. 

MICHIGAN  SECURITIES  COMMISSION 

(Department  of  Real  Estate.) 

To  the  Michigan  Securities  Commission,  Lansing,  Michigan: 


§240]  REAL  ESTATE  BROKERS  561 

In  compliance  with  Act  No.  306  of  the  Public  Acts  of  1919, 

I  (we) 

hereby  make  application  for  a  license  authorizing  me  (us)  to 
transact  the  business  of  a  Business  Chance  Broker  for  1921 
in  compliance  with  the  law  regulating  and  licensing  such  busi- 
ness within  the  State  of  Michigan,  and  tender  the  FEE  of 
$10.00  herewith. 

1.  Name  of  applicant 

(If  firm,  give  names  of  members ;  if  partnership,  give  names 

of  partners;  if  co-partnership,  association  or  corporation,  give 
officers.) 

2.  Business  address  (street  and  number) 

(City  or  town)   

(If  more  than  one  office,  give  address  of  those  other  than 
main  one  here.) 

3.  Residence  (street  and  number) 

(City  or  town) 

4.  If  a  firm,  partnership  or  corporation  designate  member  of 
said  firm,  partnership  or  corporation  to  receive  salesman's 
card  under  the  license 

5.  What  has  been  your  business  or  occupation  for  the  past 
five  years?  Give  places  where  continuous  for  sixty  days  or 
more   

6.  Give  reference  other  than  endorsers  for  each  place 
stated  in  question  five 

7.  Have  you  been  in  any  litigation  over  real  estate  during 
the  past  year? 

State  nature  of  complaint 

Signed  (applicant) 

(If  applicant  is  firm  or  partnership,  signer  must  give  his 
relation  to  firm  or  partnership ;  if  corporation,  application  must 
be  signed  by  proper  officers.) 

Sworn  to  and  subscribed  before  me,  a  notary  public  in  and 

for  the  county  of ,  State  of  Michigan,  this 

day  of ,  192 

(Seal)    

My  commission  expires 


562  THE  LAW  0F  LAND  CONTRACTS  [§  240 

RECOMMENDATION 
(Two  endorsers  required.) 

We,  the  undersigned,  who  are,  and  have  been  for  a  period 

of  a  year  past,  owners  of  real  estate  in  the  county  of , 

Michigan,  do  respectfully  recommend  for  your  consideration 

the  application  of for  a  license  as  a  real 

estate  broker. 

We  do  hereby  certify  that  we  are  well  acquainted  with  the 
applicant  (s)  and  also  certify  that  he  (they)  has  (have)  a  good 
reputation  for  honesty,  integrity  and  fair  dealing,  and  that 
we  are  satisfied  that  he  (they)  is  (are)  worthy  of  the  license 
for  which  he  (they)  applies  (apply). 

Name  

Address  

Name  - 

Address  

§  241.  Application  for  License  as  a  Real  Estate  Salesman. — 
MICHIGAN  SECURITIES  COMMISSION 
(Department  of  Real  Estate.) 
To  the  Michigan  Securities  Commission,  Lansing,  Michigan: 

1.  In  compliance  with  Act  No.  306  of  the  Public  Acts  of 

1919,  I hereby  make 

application  for  a  license  authorizing  me  to  transact  the  busi- 
ness of  a  REAL  ESTATE  SALESMAN  in  conformity  with  the 
law  regulating  and  licensing  such  business  in  the  State  of 
Michigan,  and  tender  the  FEE  of  TWO  DOLLARS  HERE- 
WITH. 

2.  Business  address  (street  and  number) 

(City  or  town) 

3.  Residence  (street  and  number) 

(City  or  town) 

4.  Name  and  address  of  present  employer... 

(If  not  employed  at  present  answer  question  five  instead.) 

5.  Name  and  address  of  prospective  employer 

(If  question  four  was  answered  put  nothing  here.) 

6.  Name  and  address  of  last  employer 

7.  What  line  of  business  or  occupation  have  you  followed 
during  the  past  five  years?  State  places  and  length  of  time 
where  continuous  for  sixty  days  or  more 


§241]  REAL  ESTATE  BROKERS  563 

8.  The  following  real  estate  owners,  located  in  the  various 
places  noted  in  answer  to  question  seven  are  well  acquainted 
with  my  activities  there.  (Do  not  use  your  endorsers  as  ref- 
erence) : 

9.  Have  you  been  in  any  real  estate  litigation  during  the 
past   year? 

State  nature  of  complaint 

Signed  (applicant) 

Sworn  to  and  subscribed  before  me,  a  notary  public  in  and 

for  the  county  of ,  State  of  Michigan,  this 

day  of ,  192 

(Seal)    

My  commission  expires 

(City  or  town) (County) ,  Michigan. 

(Date) 192 

I,   licensed   real 

estate  broker,  with  place  of  business  in County, 

Michigan,  do  hereby  request  that  the  application  of 

for  a  license  as  a  real  estate  salesman  be  granted. 

The  applicant  is  now  (or  expects  to  be)  in  my  employ. 

I  certify  that  he  (she)  is  honest,  truthful,  of  good  reputa- 
tion and  entirely  worthy  of  the  license  for  which  he  (she) 
applies. 

Signed  (broker) 

Address  

RECOMMENDATION 
(Two  endorsers  required.) 

We,  the  undersigned,  who  are,  and  have  been  for  a  period  of 

a  year  past  owners  of  real  estate  in  the  county  of , 

Michigan,  do  respectfully  recommend  for  your  consideration 

the  application  of for  a  license 

as  a  real  estate  salesman. 

We  do  hereby  certify  that  wre  are  well  acquainted  with  the 
applicant  and  also  certify  that  he  (or  she)  has  a  good  reputa- 
tion for  honesty,  integrity  and  fair  dealing,  and  that  we  are 
satisfied  that  he  (she)  is  worthy  of  the  license  for  which  he 
(she)  applies. 

Name  

Address  


564  THE  LAW  0F  LAND  CONTRACTS  [§  241 

Name  

Address  - 

A  fee  of  ten  dollars  must  accompany  the  application  for  a 
broker's  license,  and  five  dollars  for  every  annual  renewal. 
The  salesman's  license  fee  is  two  dollars  and  the  yearly  re- 
newal one  dollar.6 

Where  a  verified  complaint  in  writing  of  any  person  is  pre- 
sented to  the  Commission,  the  Commission  is  required  to  in- 
vestigate the  actions  of  any  broker  or  salesman,  at  a  place 
prescribed  by  the  Commission,  after  notifying  the  broker  or 
salesman,  and  may  suspend  or  revoke  any  license  where  he  is 
found  guilty  of  any  the  following : 

1.  Making  any  substantial  misrepresentation,  or 

2.  Making  any  false  promises  of  a  character  likely  to  influ- 
ence, persuade  or  induce,  or 

3.  Pursuing  a  continued  and  flagrant  course  of  misrepre- 
sentation or  the  making  of  false  promises  through  agents  or 
salesman  or  advertising  or  otherwise,  or 

4.  Acting  for  more  than  one  party  in  a  transaction  without 
the  knowledge  of  all  parties  thereto,  or 

5.  Representing  or  attempting  to  represent  a  real  estate 
broker  other  than  the  employer,  without  the  express  knowl- 
edge and  consent  of  the  employer,  or 

6.  Failure  to  account  for  or  to  remit  for  any  moneys  coming 
into  his  possession  which  belong  to  others,  or 

7.  Changing  his  business  location  without  notification  to  the 
Commissioner. 

8.  Failure  of  a  broker  to  return  salesman's  license  within 
five  days  as  provided  in  Section  10. 

9.  Paying  a  commission  or  valuable  consideration  to  any 
person  not  licensed  under  the  provisions  of  this  Act. 

10.  Any  other  conduct  whether  of  the  same  or  a  different 
character  than  hereinbefore  specified,  which  constitutes  dis- 
honest or  unfair  dealing.6 

The  finding  of  the  commission  may  be  reviewed  by  the 
Supreme  Court,  as  to  questions  of  law  only,  the  findings  of 
fact  being  conclusive,  and  application  must  be  made  to  the 

5.  Public    Acts,    Mich.    1919,    No  6.  Public    Acts,    Mich.    1921,    No. 

306,  Sec.  11.  387,  Sec.   13. 


§  242]  REAL  ESTATE  BROKERS  565 

Supreme  Court  within  thirty  days  after  determination  by  the 
Commission.7 

§  242.  The  Commission  Agreement. — By  amendment  to  the 
Statute  of  Frauds,  it  is  provided  that  every  agreement,  con- 
tract or  promise  to  pay  any  commission  for  or  upon  the  sale 
of  any  interest  in  real  estate,  shall  be  void,  unless  such  agree- 
ment, contract  or  promise  or  some  note  or  memorandum  there- 
of be  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with.8 

To  satisfy  the  Statute  of  Frauds  the  promise  to  pay  must 
be  in  writing  and  must  state  the  parties  to  the  agreement, 
nature  of  the  services  to  be  performed,  the  property  to  be 
sold,  the  commission  to  be  paid,9  but  it  is  not  necessary  that 
the  selling  price  or  terms  of  sale  be  included,  and  need  not 
contain  all  the  details  necessary  to  be  stated  in  an  agreement 
to  sell  and  convey  real  estate,  and  it  is  sufficient  if  the  writing 
be  a  promise  to  pay  a  commission  for  or  upon  a  sale  of  real 
estate.10 

Where  the  writing  has  a  statement  that  the  commission  is 
to  be  paid  "at  the  time  of  settlement  of  sale,"  the  client  can 
not  take  advantage  of  the  statement  to  evade  his  liability  for 
the  commission,  where  the  consumation  of  the  sale  is  pre- 
vented by  his  refusal  to  perform.11 

Where  a  broker  presented  an  agreement  to  the  owner  of  a 
house,  whereby  he  was  to  have  exclusive  listing  for  two 
months,  and  an  extension  until  such  time  as  he  received  ten 
days'  written  notice  of  cancellation,  or  if  sold  within  three 
months  by  the  broker,  and  the  testimony  showed  that  the 
owner,  a  woman,  signed  the  agreement  after  telling  the  broker 
to  erase  the  clauses  concerning  the  ten  days'  notice  and  the 
sale  within  three  months,  and  to  change  exclusive  listing  from 
two  months  to  one,  she  being  almost  blind,  signing  the  paper 
without  her  glasses,  it  was  held  that  the  broker  could  not  re- 

7.  Public  Acts,  Mich.  1921.  No.  9.  Greenberg  v.  Sakwinski,  211 
3S7,  Sec.   14.                                                  Mich.    505. 

8.  Public    Acts,    Mich.    1913,    No.  10-  Cochran  v.  Staman,  201  Mich. 


238;    3    Compiled    Laws,    1915,    Sec. 


639. 


11981.  11.  Greenberg  v.   Sakwinski,  211, 

Mich.  505. 


566  THB  LAW  0F  LAND  CONTRACTS  [§  242 

cover,  as  the  agreement,  without  the  erasures  did  not  truly 
represent  the  agreement  between  the  broker  and  the  owner.12 

Where  a  broker  contracts  that  he  shall  be  entitled  to  a  com- 
mission "in  case  he  effects  a  sale,"  it  was  held  that  his  right  to 
commission  accrues  when  a  contract  to  buy  and  sell  is  signed, 
although  a  formal  deed  has  not  been  executed.13 

The  phase,  "every  agreement,  promise,  or  contract  to  pay 
any  commission  for  or  upon  the  sale  of  any  interest  in  real 
estate,"  used  in  the  Statute  of  Frauds,  has  been  construed  to 
apply  to  a  purchase  as  well  as  to  a  sale,  the  argument  that  an 
agreement  to  purchase  real  estate  is  not  one  to  sell  real  estate, 
being  a  too  narrow  construction  of  the  statute.14 

The  fact  that  the  promise  to  pay  a  commission  was  not  in 
writing  will  bar  the  broker  from  suing  upon  the  quantum 
meruit  for  services  actually  performed,  and  upon  proof  of 
their  value.15 

A  real  estate  broker  approached  a  farmer  and  orally  agreed 
to  pay  him  a  certain  amount  if  he  furnished  a  customer  for  cer- 
tain premises.  The  compensation  to  be  paid  the  farmer  was 
held  to  constitute  "commission"  and  within  the  law  of  1913 
requiring  same  to  be  in  writing,  and  the  court  also  held  that 
the  statute  requiring  the  agreement  to  be  in  writing  applied 
to  other  persons  as  well  as  those  between  owner  and  broker.16 

The  agency  of  a  broker  whose  employment  is  definitely 
limited  by  his  contract,  terminates  with  the  expiration  of  the 
time  specified,17  and  where  no  time  is  specified,  the  contract 
continues  for  only  a  reasonable  time,18  but  ordinarily  the  broker 
is  entitled  to  notice  of  the  revocation  of  his  authority.19 

An  option  given  to  a  broker  to  sell  a  certain  farm,  providing 
that  same  could  be  terminated  by  thirty  days'  written  notice, 
the  giving  of  such  notice  terminated  the  contract,  and  the 

12.  White  v.  Hoenighousen,  211  16.  Smith  v.  Starke,  196  Mich. 
Mich.   471.                                                      311. 

13.  Cain  v.  Masurette,  196  Mich.  7.  17.  Beadle  v.  Sage  Land  Co.,  140 

Mich.    199;    West    v.    Demme,    128 


14.     Slocum   v.   Smith,  195   Mich 
281. 


Mich.   11. 


i-    oi                   o    mi,  ioc  i\/u„i,  18-  Friedenwald     v.    Welch,     174 

15.  Slocum    v.    Smith,  195  Mich. 

281;    Paul    v.    Graham,  193  Mich.  Mlchl   399' 

447.  19.  Nolan  v.  Swift,  111  Mich.  56. 


§  243  |  REAL  ESTATE  BROKERS  567 

broker  was  not  entitled  to  any  commission;  the  rule  that  the 
owner  cannot,  with  knowledge  that  the  broker  is  negotiating 
a  sale,  cancel  the  contract  and  avoid  payment  of  the  commis- 
sion, is  not  applicable.20 

The  broker  is  ordinarily  strictly  confined  to  his  instructions, 
but  he  has,  however,  implied  authority  to  do  any  act  or  to 
make  any  declaration  in  regard  to  the  property  which  is  neces- 
sary to  effectuate  a  purchase  or  sale.21 

The  ordinary  authority  of  the  broker  is  merely  to  find  a 
purchaser  who  is  ready,  able,  and  willing  to  enter  into  a  con- 
tract on  the  terms  specified  by,  or  acceptable  to  the  principal, 
except  where  the  broker  is  clearly  given  the  authority  to  com- 
plete a  sale  binding  upon  the  principal.22 

§  243.  Duties  of  the  Broker. — A  broker  must  act  in  good 
faith  and  in  the  interest  of  his  principal  and  an  agent  to  sell 
may  not  become  the  agent  of  the  purchaser,  nor  may  an  agent 
to  buy  become  the  agent  of  the  seller,  unless  both  principals 
are  fully  and  fairly  acquainted  with  the  fact  that  the  agent 
was  acting  in  a  dual  capacity;  but  if  both,  knowing  the  cir- 
cumstances, consent  that  the  agent  may  so  act,  the  agreement 
for  commission  is  valid  and  enforceable.23 

Where  a  real  estate  broker  represented  both  the  buyer  and 
the  seller,  and  informed  the  buyer  that  the  lowest  price  the 
seller  would  take  for  the  farm  was  $7,000.00,  when  in  fact 
the  seller  had  engaged  the  broker  to  sell  at  $5,300.00,  the 
broker  to  have  all  he  obtained  over  that  amount,  it  was  held 
that  if  the  purchaser  relied  upon  the  representation,  and  acted 
upon  it,  it  was  a  fraud  upon  the  purchaser;  the  broker's  duty 
was  to  disclose  the  fact  that  he  was  acting  for  both  parties 
and  also  to  disclose  all  the  facts  in  his  possession  as  to  the 
value  of  the  farm ;  and  in  a  suit  for  an  accounting  the  broker 
was  liable  for  the  amount  he  profited  by  the  fraud.24 

20.  Holmes  Realty  Co.  v.  Silcox.  23.  Kirby-Sorge-Felske  Co.  v. 
194  Mich.  59.                                                 Doty,    190    Mich.    533;    Hannan    v. 

Prentis,  124  Mich.  417. 

21.  Smith    v.    Mich.    Realty    Co., 

175  Mich.  600.  24-  Moore    v-    Meade,    213    Mich. 

597;   Hogle  v.  Meyering,  161   Mich. 

22.  Vaughn  v.  Sheridan,  5<X  Mich.  472;  Woods  v.  Palmer,  151  Mich. 
155.  30;  Phinney  v.  Hall,  101  Mich.  451. 


568  THE  LAW  OF  LAND  CONTRACTS  [§  243 

I 

The  broker  must  act  for  his  principal  alone,  and  a  promise 
by  one  of  the  principals  in  an  exchange  of  real  estate,  after 
negotiations  were  completed,  to  pay  a  commission  to  the  other 
party's  broker,  to  whom  he  owed  nothing,  was  void  for  want  of 
consideration.25 

Where  a  broker  is  employed  merely  to  bring  the  parties 
together,  and  they  make  their  own  bargain,  thus  giving  him 
no  discretion  or  confronting  him  with  a  conflict  of  duties,  he 
may  recover  commission  from  both  parties.26 

Where  the  broker  deals  with  his  principal  through  an  attor- 
ney, he  is  not  excused  from  acting  in  good  faith,  nor  would 
lack  of  diligence  on  the  part  of  the  attorney  to  discover  fraud- 
ulent conduct  of  the  broker,  active  or  passive,  excuse  the 
broker.27 

The  contract  entered  into  between  two  principals  is  voidable 
where  the  broker  represented  both  without  the  knowledge  of 
one,  and  the  one  seeking  to  avoid  the  contract  need  not  show 
that  any  improper  advantage  had  been  gained  over  him,  and 
he  may  repudiate  the  contract  irrespective  of  any  proof  of 
actual  fraud.28 

A  broker  may  not  deal  with  the  subject  matter  of  his 
agency  for  his  own  advantage,  and  where  he  overstates  the 
price  at  which  it  may  be  bought  and  obtains  the  difference,  the 
principal  may  recover  the  excess  from  him,29  and  a  broker 
employed  to  sell  property  cannot  become  the  buyer  thereof 
either  directly  or  indirectly30 

§  244.  When  Commission  Earned. — The  commission  payable 
to  the  broker  must  be  set  up  in  the  contract  and  where  the 
defendant  listed  a  certain  property  with  a  real  estate  broker 
for  rent,  promising  to  pay  a  commission  to  the  broker,  but 
also  reserving  the  right  to  rent  the  premises  himself  and  not 
pay  any  commission  if  the  tenant  was  secured  by  himself,  the 

25.  Lister  v.  Sakwinski,  206  Mich  28.  McCully  v.   Rivers,  203  Mich. 
121.                                                                   417. 

26.  Flattery    v.    James    Cuning-  29.  Hogle  v.  Meyering,  161  Mich, 
ham    Son    &    Co.,    125    Mich.    467:       472. 


Friar  v.  Smith,  120  Mich.  411 

21 
417. 


30.  Kimball  v.  Ranney,  122  Mich. 
27.  McCully  v.  Rivers,  203  Mich.       160. 


§2441 


REAL  ESTATE  BROKERS 


569 


court  laid  down  the  test  to  be:  "Was  the  broker  the  procuring 
cause  of  the  sale  or  lease?"  and  held  that  the  right  of  authority 
is  to  the  effect  that  if  a  broker,  even  though  he  did  not  have 
the  exclusive  agency,  was  in  fact  the  procuring  cause  of  the 
purchase  or  lease,  and  would  otherwise  be  entitled  to  commis- 
sions, he  will  not  be  deprived  thereof  by  the  fact  that  the 
owner  at  the  time  of  the  sale  or  lease  did  not  know  of  the 
broker's  instrumentality  in  procuring  the  purchaser  or  lessee.81 

It  is  a  settled  rule  of  law  that  a  broker  who  has  knowledge 
of  restrictions  in  the  seller's  title,  may  not  recover  his  com- 
mission where  the  sale  fails  of  consummation  because  of  such 
restriction,  32  but  the  rule  does  not  apply  where  it  is  the  in- 
tention of  the  parties  that  the  seller  should  perfect  the  title 
by  removing  the  encumbrance.83 

A  written  contract  required  the  broker  to  furnish  a  buyer 
for  premises,  "price  $7,000.00,  amount  down  $1,000.00,  $100.00 
every  six  months  and  interest,"  and  where  the  broker  furnished 
a  buyer  who  had  $900.00  in  cash,  and  who  owned  property 
worth  $6,000.00,  and  was  willing  to  enter  into  an  agreement  on 


31.  McCready  v.  Nicholson,  213 
Mich.  551;  Kinsey  v.  Barth,  192 
Mich.  219;  McGovern  v.  Vennett, 
146  Mich.  558;  Heaton  v.  Edwards, 
90  Mich.  500;  Hoadley  v.  Savings 
Bank  (Conn.),  44  L.  R.  A.  321,  and 
note. 

Gettleson  v.  Lewis,  206  Mich.  113, 
where  the  court  said  if  the  prin- 
cipal's title  is  defective  and  the 
agent  has  knowledge  of  such  de- 
fect and  it  is  not  such  a  defect 
as  may  be  removed  by  the  princi- 
pal, the  agent  does  not  earn  his 
commission  by  producing  as  a  pur- 
chaser one  who  is  willing  to  and 
does  contract  for  only  a  good  or 
a  merchantile  title. 

Cain  v.  Masurette,  196  Mich.  7, 
where  the  court  held  that  the  bro- 
ker could  not  recover  unless  it 
was  the  intention  of  the  parties 
that    the    principal    should    subse- 


quently perfect  his  title  in  order  to 
be  able  to  perform. 

Appleby  v.  Sperling,  194  Mich. 
681,  where  the  principal  agreed  to 
furnish  an  abstract  and  tax  his- 
tory showing  clear  title  the  agent 
advising  the  principal  that  mineral 
reservations  would  not  injure  his 
title,  and  later  the  buyer  produced 
by  the  agent  refused  to  complete 
the  sale  upon  learning  of  the  min- 
eral reservations,  and  the  court 
held  that  the  agent  could  not  re- 
cover his  commission. 

32.  Chapin  v.  Bolles  Iron  &  Wire 
Works,  213  Mich  515,  where  the 
defendant  advised  the  broker  that 
he  could  have  the  leases  now  on 
the  premises  removed,  and  the  deal 
was  not  consummated  by  reason 
of  the  defendant's  failure,  the  bro- 
ker  recovered    his    commission. 

33.  Brackenridge  v.  Claridge 
(Tex.),   43   L.  R.  A.   593,  and  note. 


570  THE  LAW  OF  LAND  CONTRACTS  [§244 

defendant's  terms,  the  broker  produced  a  buyer  who  was  ready, 
willing  and  able  to  buy,  and  was  entitled  to  his  commission.34 

An  agreement  to  pay  a  commission  whereby  the  broker  was 
required  to  make  a  lease  with  one  R.  W.,  at  terms  and  condi- 
tions satisfactory  to  the  C.  S.  B.  company,  limits  the  right  of 
recovery  of  the  broker  for  his  commissions  upon  his  success 
in  making  the  lease  as  per  the  agreement.36 

Where  a  broker  was  engaged  to  secure  a  purchaser  for  the 
sale  of  defendant's  business,  consisting  of  a  barber  shop  and 
a  laundry  agency,  he  did  not  procure  a  buyer,  able,  ready  and 
willing  to  buy,  if  the  buyer  refused  to  assume  defendant's 
agency  contract  with  the  laundry  company,  and  the  sale  was 
not  consummated,  and  the  defendant  was  thereby  relieved 
from  paying  any  commission.36 

Promissory  notes  given  by  a  principal  to  his  broker  as  com- 
mission in  a  certain  deal  whereby  the  broker  was  to  procure  a 
loan  for  the  principal  and  manage  the  execution  of  a  certain 
land  contract,  were  held  void  for  failure  of  consideration  where 
the  deal  was  not  consummated.37 

In  a  suit  against  the  vendee  for  commission  on  the  sale  of 
a  land  contract,  the  plaintiff  contended  that  the  vendor  had 
left  money  with  the  vendee  to  pay  the  commission,  but  it  was 
held  that  the  statement  of  the  vendor  made  to  the  vendee  that 
there  was  $25.00  due  the  plaintiff  and  he  expected  the  vendee 
to  pay  it,  was  insufficient  evidence  to  support  plaintiff's  claim.38 

A  real  estate  broker  who  has  agreed  in  writing  to  furnish 
a  buyer  within  a  stipulated  time,  can  not  recover  his  commis- 
sion before  the  time  stipulated  has  expired,  unless  he  has  pro- 
duced a  buyer  who  was  willing  and  able  to  pay  the  contract 
price  in  the  time  fixed  by  the  writing.39 

The  vendor's  equitable  lien  for  the  purchase  price  in  a  land 
contract,  where  the  agreement  was  that  the  vendee  should 

34.  Garrise  v.  Kars,  201  Mich.  37.  Newman  v.  Adelsperger,  206 
643.                                                                   Mich.  683. 

35.  Fleming  v.  James  S.  Holden  38.  Edwards  v.  Thawan,  187  Mich. 
Co.,  200  Mich.  519.                                       361. 

36.  Hunter  v.  Blasser,  194  Mich.  39.  Crawford  v.  Cicotte,  186  Mich. 
157;  Morgan  v.  Zanger,  188  Mich.  270;  Biddle  v.  Biddle,  202  Mich. 
212.                                                                   160. 


§244] 


REAL  ESTATE  BROKERS  571 


pay  the  entire  commission  of  the  broker  as  a  part  of  the  pur- 
chase price,  attached  in  favor  of  the  broker,  on  the  signing  of 
the  contract.40 


40.  Biddle  v.  Biddle,  supra. 


CHAPTER  XV 

OPTIONS 

§  245.  Definition  and  Nature,  Real  Estate  Options. 

§  246.  Formal  Requisites. 

§  247.  Form  of  Options. 

§  248.  Consideration. 

§  249.  Statute  of  Frauds. 

§  250.  Option  Contract  Distinguished  From  Contract  of  Sale. 

§  251.  Option  Contract  Distinguished  From  Agency. 

§  252.  Assignability  of  Option  Contract. 

§  253.  Time  of  Exercising  Option  Contract. 

§  254.  Discharge  of  Option  Contract. 

§  255.  Payment  and  Tender. 

§  256.  Effect  of  Exercising  Option  or  Election. 

§  257.  Against  Whom  Enforceable. 

§  258.  Remedies. 

§  259.  Specific  Performance. 

§  260.  The  Option  Upheld. 

§  261.  The  Option  Defeated. 

§  262.  Controversy  as  to  the  Character  of  the  Instrument. 

§245.  Definition  and  Nature — Real  Estate  Options. — An  op- 
tion may  be  denned  as  a  contract  by  which  the  owner  agrees 
with  another  person  that  he  shall  have  the  privilege  of  buying 
his  property  at  a  fixed  price  within  a  specified  time.  It  is 
neither  a  sale  of  land  nor  an  agreement  to  sell,  but  merely  the 
disposal  of  a  privilege  of  electing  to  buy  in  accordance  with 
the  terms  and  conditions  of  the  option  contract.1  An  option 
contract  does  not  consist  of  a  privilege  to  purchase  only  but 
it  may  be  a  privilege  to  sell  in  which  case  the  right  of  election 
is  with  the  seller.2  Such  option  contract,  before  acceptance, 
vests  no  title,  legal  or  equitable  in  the  optionee,  and  the  as- 
signment thereof  by  the  optionee,  vests  no  title  to  the  land, 
legal  or  equitable,  in  his  assignee.3 

1.  Cameron     v.     Shumway,     149  2.  Morgan   v.   Forbes,   128   N.   E. 

Mich.    634;    Barnes   v.   Husted,    219  792. 

Pa.   St.   287,   68   Atl.   839;    Benedict  3    We£jt   virginia    Pulp    &    Paper 

v.   Pincus,   191  N.  Y.  377,  84   N.  E.  Co    y    Cooper>  1Q6  g    E    55 
284. 


§247]  options  573 

§  246.  Formal  Requisites. — The  option  must  be  in  writing 
and  signed  by  the  owner  of  the  land  or  his  authorized  agent, 
the  contract  being  within  the  Statute  of  Frauds.4 

While  it  is  preferable  to  specify  the  time  during  which  the 
option  contract  is  to  run,  nevertheless,  a  failure  to  do  so  does 
not  necessarily  invalidate  the  option.  If  a  consideration  is 
present,  it  will  remain  open  for  a  reasonable  time.6 

§  247.  Form  of  Option.— 

This  agreement,  made  and  entered  into  this day 

of ,  A.  D.  19 ,  between  A.  B.  of ,  here- 
after called  the  optionor,  and  C.  D.  of ,  hereafter 

called  the  optionee, 

Witnesseth:     In  consideration  of  $ ,  receipt 

of  which  is  hereby  acknowledged,  optionor  gives  and  grants 
unto  the  optionee  and  to  his  heirs,  and  assigns,  the  exclusive 

right  or  privilege  of  purchasing  on  or  before  the day 

of ,  A.  D.  19 ,  all  that  certain  piece  of  real 

estate  owned  by  the  optionor  and  situated  in    (township  or 

city)  of ,  county  of ,  and  State  of 

Michigan,  more  particularly  described  as  follows  (here  in- 
sert complete   description  of  property) :      For  the   sum  of 

$ ,  to  be  paid  according  to  the  following  terms  (here 

insert  terms) . 

Notice  of  the  election  to  purchase  hereunder  by  the  optionee 
or  his  assigns,  shall  be  in  writing,  and  shall  be  given  to  the 

optionor  at  within  days  after  notice 

of  election  to  purchase,  the  optionor  agrees  to  furnish  at  his 

own  cost  and  expense  a  abstract  of  title  brought 

down  to  date. 

The  optionee,  his  heirs  or  assigns  shall  have days 

from  and  after  delivery  of  said  abstract  of  title  within  which 
to  examine  the  same. 

If  the  title  to  the  above  described  property  is  well  vested  in 
said  optionor  and  is  free  and  clear  of  all  encumbrances  except 
,  then  the  optionee  shall  fully  perform  his  part  of 

4.  Coleman  v.  Applegarth,  68  Md.  21  Atl.  Rep.  522;  Hanley  v.  Water- 
21.  6  Am.  St.  Rep.  417;  11  Atl.  Rep.  son,  39  W.  Va.  214,  19  S.  E.  536; 
284.  Vassault  v.  Edwards,  43  Calif.  459; 

5.  Kellow  v.  Jory,  141  Pa.  St.  144.  Larmon  v.  Jordan,  56  111.  204. 


574  THE  LAW  0F  LAND  CONTRACTS  [§  247 

said  option  contract  in  accordance  with  the  terms  as  heretofore 
stated,  but  if  the  title  to  such  described  property  shall  be  other 
than  as  above  stated,  then  this  option  shall  be  at  an  end  and 
the  optionor  shall  pay  to  the  optionee  on  demand,  all  moneys 
theretofore  paid  by  the  optionee  on  account  of  the  said  price. 

Upon  performance  by  the  optionee  hereunder,  the  optionor 
agrees  to  convey  to  him,  or  his  heirs  and  assigns,  by  good  and 
sufficient  warranty  deed,  and  to  deliver  up  possession  of  said 
property. 

Witness:  The  hands  and  seals  of  the  said  parties  the  day 
and  year  first  above  written. 

In  presence  of: 

(A.) 


§  248.  Consideration. — An  option,  like  all  other  contracts, 
requires  a  valuable  consideration  to  support  it.  In  the  absence 
of  a  valuable  consideration,  a  writing  although  in  the  form  of 
an  option,  is  not  a  contract,  but  a  mere  offer  to  sell.  This  may 
be  withdrawn  by  the  owner  any  time  before  it  has  been  ac- 
cepted by  the  other  party.6 

An  acceptance  of  the  offer,  however,  duly  communicated  to 
the  owner  before  the  offer  is  withdrawn,  binds  the  owner  to 
make  a  conveyance,  and  the  want  of  a  consideration  for  the 
option  is  no  excuse;  the  acceptance  of  the  offer  to  sell  com- 
pleting a  contract  of  sale  of  the  property.7 

The  consideration  to  support  an  option  contract  must  be 
distinct  from  the  price  of  the  land.  Something  of  which  it 
can  be  said,  this  was  given  by  the  proposed  purchaser  to  the 
proposed  vendor  as  the  price  for  the  option  or  privilege  to 
purchase.8      An   advance  payment  to  be   returned   with   the 

6.  Axe  v.  Tolbert,  179  Mich.  356,  721,  26  Atl.  Rep.  221;  Fitzgerald  v. 
146  N.  W.  418;  Weaver  v.  Burr,  31      Boyle,   193   Pac.   1109. 

W.    Va.    736,    8    S.    E.    745;    Ide    v.  8.  Ide   v.   Leiser,    10   Mont.    5,   24 

Leiser,  10  Mont.  5,  24  Am.  St.  Rep.  Am.  St.  Rep.  17,  24  Pac.  695;   Mur- 

17,  24  Pac.  695.  phy    v.    Reid,    125    Ky.    585,    101    S. 

7.  Guyer  v.  Warren,  175  111.  328,  E.  964,  128  Am.  St.  Reps.  259,  10 
51  N.  E.  580;  Yerkes  v.  Richards,  L.  R.  A.  New  Series,  195;  27  Rul- 
153   Pa.   St.   646,  34  Am.   St.  Reps.  ing  Case  Law  338. 


§249 1 


OPTIONS 


575 


privilege  of  purchasing  is  insufficient  to  support  an  option.9 
On  the  other  hand,  the  courts  have  held  that  where  the  option 
contract  provides  that  in  case  a  sale  of  the  land  afterwards 
follows  the  option,  the  consideration  therefor  is  to  be  applied 
as  a  part  of  the  purchase  price;  that  such  consideration  is 
sufficient  to  support  the  option.10 

Unless  required  by  the  statute  of  frauds  in  a  particular  juris- 
diction, the  consideration  to  support  an  option  need  not  be 
expressed  but  may  be  proved  aliunde.11 

In  some  jurisdictions  it  is  held  that  an  instrument  under 
seal  imports  a  consideration.12 

According  to  the  great  weight  of  authority,  the  inadequacy 
of  the  consideration,  if  there  is  want  of  a  valuable  considera- 
tion, does  not  effect  the  binding  effect  of  an  option,13  and  a 
nominal  sum  of  $1.00  is  sufficient.14  A  mere  recital  of  a 
nominal  consideration,  which  is  not  paid  or  agreed  to  be  paid, 
is  insufficient  however  to  support  an  option  contract.15 

§  249.  Statute  of  Frauds. — While  an  option  contract  does 
not  convey  any  interest  or  estate  in  the  land  until  after  an 
election  to  purchase  in  accordance  with  the  terms  and  condi- 
tions of  the  option  contract,  nevertheless,  such  a  contract 
comes  within  the  operation  of  the  statute  of  frauds.  A  descrip- 
tion of  the  premises  and  the  terms  must  be  sufficiently  com- 
plete to  meet  all  the  statutory  requirements.16 

For  a  full  discussion  of  the  Michigan  decisions  relating  to 
the  statute  of  frauds  see  Chapter  II  ante ;  and  those  decisions 
relating  directly  to  options,  see  sections  260,  261  and  262,  Post. 


9.  Friendly  v.  Elwert,  57  Ore.  599, 
112  Pac.  1085,  Annotated  Cases, 
1913  A  257. 

10.  Ide  v.  Leiser,  10  Mont.  5,  24 
Am.  St.  Reps.  17,  24  Pac.  695. 

11.  Weaver  v.  Burr,  31  W.  Va. 
736,  8  S.  E.  743,  3  L.  R.  A.  94; 
Thomason  v.  Bescher,  176  N.  Car. 
622.  97  S.  E.  654;  2  Am.  Law  Reps. 
626. 

12.  Hobbs  v.  Brush  Co.,  75  Mich. 

550. 


13.  Ross  v.  Parks,  93  Ala.  153, 
8  Southern  Reps.  36S,  30  Am.  St. 
Reps.  11  L.  R.  A.  148. 

14.  George  v.  Schuman,  202  Mich. 
241,  168  N.  W.   486. 

15.  Graybill  v.  Brugh,  89  Va.  895, 
17  S.  E.  558,  37  Am.  St.  Rep.  S94, 
21  L.  R.  A.  133. 

16.  Hilberg  v.  Greer,  172  Mich. 
505,  138  N.  W.  201;  Esslinger  v. 
Pascoe,  129  Iowa  86,  105  N.  W. 
362,  3  L.  R.  A.  New  Series  147; 
See  C.  L.  of  Mich.,  1915,  Sec.  11977. 


576 


THE  LAW  OF  LAND  CONTRACTS 


[§250 


§  250.  Option  Contract  Distinguished  From  Contract  of 
Sale. — An  option  contract  is  unilateral  and  becomes  bilateral 
only  after  an  election  to  purchase  has  been  made  by  the 
optionee.  A  contract  of  sale  is  bilateral  and  both  parties  to  the 
contract  are  equally  bound  from  the  beginning.  Herein  lies 
the  distinction  between  an  option  contract  and  a  contract  of 
sale.17 

This  is  the  true  criterion  to  determine  into  which  class  a 
contract  relating  to  land  falls,  regardless  of  which  name  the 
contracting  parties  themselves  may  apply  to  the  transaction.18 

§  251.  Option   Contract   Distinguished   From   Agency. — An 

Owner  of  property  placing  it  in  the  hands  of  a  real  estate 
broker  for  sale  may  give  an  option  which  will  be  binding  as 
such.19  Generally,  however,  the  employment  of  a  broker  to 
sell  real  estate  constitutes  a  contract  of  agency,20  thus  differing 


17.  Test  as  to   Character  of  the 
Instrument. 

Pangburn  v.  Sifford,  216  Mich. 
153-162.  In  this  case  there  was 
a  controversy  as  to  whether  or 
not  the  receipts  in  question  show 
a  contract  or  an  option.  "It  is  true 
there  is  more  or  less  language 
made  use  of  in  the  receipt  which 
is  more  suitable  to  a  contract  than 
to  an  option,  but  the  real  test  by 
which  it  must  be  determined  is 
whether  both  parties  are  bound  by 
the  agreement.  Whether  there  is 
mutuality  of  contract.  If  defend- 
ants were  obliged  to  sell  and  plain- 
tiff to  buy,  then  it  is  a  contract. 
The  receipt  was  not  signed  by 
plaintiff.  Therefore,  we  conclude 
that  he  could  purchase  the  prem- 
ises or  not,  as  he  saw  fit.  This 
makes  the  agreement  a  unilateral 
option  contract.  This  is  made  plain 
by  the  recent  case  of  Tattan  v. 
Bryant,  198  Mich.  515."  Winders 
v.  Keenan,  161  N.  Car.  628,  77  S. 
E.  687;   Darr  v.  Mummert,  57  Neb. 


378,  77  N.  W.  767;  In  re  Allen,  183 
Fed.  172. 

18.  Solomon  v.  Shewitz,  185  Mich. 
620,  152  N.  W.  196;  Tattan  v.  Bry- 
ant, 198  Mich.  515,  165  N.  W.  778; 
Cavada  v.  Diaz,  37  Philippine  Reps. 
982;  Berry  v.  Humphries,  76  W. 
Va.  668,  86  S.  E.  568;  Hazelton  v. 
Le  Due,  10  App.  Cases  D.  C.  379; 
Hamberger  v.  Thomas,  Texas  Civil 
Appeals,  118  S.  E.  770;  Benson  v. 
Shotwell,  87  Cal.  49,  25  Pac.  249; 
Golden  v.  Cornett,  154  Ky.  438,  157 
S.  W.  1076. 

19.  Kellow  v.  Jory,  141  Pa.  St. 
144,  21  Atl.  522;  Reimer  v.  Rice, 
88  Wise.  16,  59  N.  W.  450;  Russell 
v.  Andrae,  79  Wise.  108,  48  N.  W. 
117;  Levy  v.  Roth,  39  N.  Y.  Supp. 
1057,  17  Misc.  Reps.  N.  Y.  40; 
Hunkabee  v.  Shepard,  75  Ala.  342; 
Strang  v.  Gosse,  110  Mich.  153,  67 
N.   W.    1108. 

20.  Tate  v.  Aitken,  5  Calif.  App. 
505,  90  Pac.  836;  Chesborogh  v. 
Vizard  Investment  Co.,  156  Ky.  149, 


§253] 


OPTIONS 


577 


materially  from  an  option  which  confers  the  privilege  of  bring- 
ing into  existence  relation  of  vendee  and  vendor  between 
optionee  and  optionor. 

§  252.  Assignability  of  Option  Contract. — By  the  great 
weight  of  authority,  an  option  contract  for  the  purchase  of 
real  estate  based  on  a  valuable  consideration  is  assignable,81 
and  the  assignee  may  compel  the  owner  to  specifically  perform 
the  contract.22 

On  the  other  hand,  an  option  to  purchase  land  may,  by  ex- 
press language,  be  limited  to  the  optionee,  in  which  case  he 
cannot,  by  an  assignment,  substitute  in  his  stead  any  other 
person,23  and  there  are  cases  holding  an  option  contract  unas- 
signable on  account  of  the  personal  elements  entering  into  the 
transaction.24 

§  253.  Time  of  Exercising  Option  Contract. — Time  is  of  the 
essence  of  an  option  contract,  and  the  prospective  purchaser 
must  act  strictly  within  the  period  limited  and  communicate 
his  acceptance  to  the  owner  before  its  expiration.25 


160  S.  W.  725;  Farday  Coal  Co.  v. 
Owens,  26  Ky.  Law  Reps.  243,  80 
S.  W.  1171;  Axe  v.  Tolbert,  179 
Mich.  556,  146  N.  W.  418. 

21.  Perkins  v.  Hadsell,  50  111. 
216;  Wilkins  v.  Hardaway,  159  Ala. 
565,  48  S.  678;  Strasser  v.  Steck, 
216  Pa.  St.  577,  66  Atl.  87;  Kreut- 
zer  v.  Lynch,  122  Wise.  474,  100 
N.  W.  887;  Cameron  v.  Shumway, 
149  Mich.  634,  113  N.  W.  287;  Con- 
tra-Wheeling Creek  Gas,  Coal  & 
Coke  Co.  v.  Elder,  170  Fed.  215; 
Rease  v.  Kittle,  56  W.  Va.  269,  49 
S.  E.   150. 

22.  Soffrain  v.  McDonald,  27  Ind. 
269;  House  v.  Jackson,  24  Ore.  89, 
32  Pac.   1027. 

23.  Andrew  v.  Myerdirck,  87  Md. 
511,  40  Atl.  175;  Meyers  v.  Stone. 
128  Iowa  10,  102  N.  W.  507,  111 
Am.  St.  Reps.  180,  5  Ann.  Cases 
912. 


24.  Rice  v.  Gibbs,  40  Neb.  264, 
58  N.  W.  724;  Snow  v.  Nelson,  113 
Fed.  353;  Menger  v.  Ward,  87  Tex. 
622,  30  S.  W.  853. 

25.  Tattan  v.  Bryant,  198  Mich. 
515,  165  N.  W.  778;  Weaver  v.  Burr, 
31  W.  Va.  736,  8  S.  E.  743;  Sten- 
bridge  v.  Stenbridge,  87  Ky.  91,  7 
S.  W.  611;  Longworth  v.  Mitchel. 
26  Ohio  St.  334;  Smith  v.  Fleeks, 
App.  69  Pa.  St.  474;  Coleman  v. 
Applegarth,  68  Md.  21,  11  Atl.  284, 
6  Am.  St.  Reps.  417;  Bostwick  v. 
Hess,  80  111.  13S;  Richardson  v. 
Hartwick,  106  U.  S.  252;  Dyer  v. 
Duffy,  39  W.  Va.  148,  19  S.  E.  540, 
24  L.  R.  A.  339;  Vassault  v.  Ed- 
wards, 43  Calif.  458;  Weiss  v.  Cla- 
born,  219  S.  W.  884;  Hughes  v.  Hol- 
liday,  149  Ga.  147,  99  S.  E.  301; 
Saraceno  v.  Carrano,  92  Conn.  563, 
103  Atl.  631. 


578  THE  LAW  OF  LAND  CONTRACTS  [§253 

If  no  specific  time  is  mentioned  in  the  option  contract,  the 
optionee  must  exercise  his  right  of  election  within  what,  under 
all  the  circumstances  of  the  particular  case,  would  be  a  rea- 
sonable time.26 

Acceptance  may  be  made  on  the  last  day  of  the  time  speci- 
fied,27 and  the  option  expires  on  the  date  specified  without 
any  action  on  the  part  of  the  owner  of  the  land,  and  it  is  not 
necessary  for  him  to  give  notice  of  forfeiture  to  the  optionee.28 

The  sale  of  the  land  need  not  be  completed  within  the  time 
limited  for  acceptance,  unless  expressly  required  by  the  terms 
of  the  option  contract,  time  being  of  the  essence  of  the  option 
as  to  the  acceptance  or  election,  as  it  is  usually  called,  but  not 
as  to  its  performance,  and  if  an  election  is  duly  made  within 
the  allotted  time,  the  parties  are  entitled  to  a  reasonable  time 
expressed  but  may  be  proved  aliunde.11 

§254.  Discharge  of  Option  Contract. — An  option  contract, 
not  supported  by  a  valuable  consideration,  may  be  revoked  at 
any  time  by  the  optionor  signifying  his  intention  to  do  so,  if 
the  optionee  has  knowledge  of  such  act  prior  to  his  accept- 
ance.30 

The  expiration  of  the  time  limit  when  expressly  fixed  by 
the  option  contract  terminates  the  right  of  the  optionee  to 
elect,  or  the  expiration  of  a  reasonable  time,  when  no  time  is 
expressly  specified.31 

When  an  offer  is  made  for  a  time  limited  in  the  offer  itself, 
no  acceptance  afterwards  will  make  it  binding.  Any  offer  with- 
out consideration  may  be  withdrawn  at  any  time  before  accept- 
ance providing  the  intention  to  withdraw  is  communicated  to 

26.  Saraceno  v.  Carrano,  92  Conn.  Aprs.  69  Pa.  St.  474;  Boston  R.  R. 
563,  103  Atl.  631;  Larmon  v.  Jor-  v.  Rose,  194  Mass.  142,  80  N.  E. 
don,  56  111.  204;  Kellow  v.  Jory,  498;  Horgan  v.  Russell,  24  N.  D. 
141  Pa.  St.  144,  21  Atl.  522;  Hanly  490,  140  N.  W.  99,  43  L.  R.  A. 
v.    Watterson,    39    W.    Va.    214,    19  105  Atl.  486. 

S-   E"   536,  30.  Bower  v.  McCarthy,  85  Mich. 

27.  Houghwout    v.    Boisaubin,    18      26,    48    N.   W.    155. 

N.    J.    Eq.    315.  3i    gtewart   y     Gardner>   152   Ry. 

28.  Cummings  v.  Lake  Realty  Co.,  12Q  153  s  w.  3;  Mossie  v.  Cyrus, 
86  Wise.  382,  57  N.  W.  431.  fil  'Qre   1T>  n9  Pac   485> 

29.  Breen  v.  Mayne,  141  la.  399, 
118   N.   W.   441;    Smith    &   Fleek's 


§  255]  options  579 

the  optionee  prior  to  his  acceptance,  and  an  offer  which  in  its 
terms  limits  the  time  of  acceptance  is  withdrawn  by  expira- 
tion of  the  time.32 

If  the  optionee  abandons  his  rights  under  the  option  before 
the  expiration  of  the  time  limit,  the  optionor  has  a  right  to 
consider  the  option  contract  ended,33  and  thereafter  the  op- 
tionee may  not  exercise  his  right  to  purchase.34  Can  claim 
no  damages  arising  out  of  the  option,35  and  is  estopped  to  ask 
for  specific  performance.36 

The  parties  to  an  option  contract  may  discharge  their  old 
contract  by  substittuting  a  new  one,37  or  by  a  mutual  rescis- 
sion, but  a  request  by  one  of  the  parties  to  the  option  for  an 
alteration  or  modification  of  an  accepted  option  is  not  a 
breach  thereof  giving  a  right  of  rescission  or  an  action  there- 
on.38 Also  the  offer  of  a  lesser  price  for  land  by  the  optionee 
is  not  a  refusal  to  take  at  the  option  price  so  as  to  terminate 
the  option,39  and  an  option  for  the  purchase  of  land  was  not 
withdrawn  by  giving  a  second  option  to  another  party,  which 
did  not  bind  the  optionor  to  convey  except  upon  the  expiration 
of  any  prior  option  that  might  exist.40 

§  255.  Payment  and  Tender. — An  option  contract,  as  here- 
tofore stated,  is  raised  into  a  mutually  binding  contract  of 
sale  thus  crediting  the  relation  of  vendor  and  purchaser  be- 
tween the  parties  only  after  a  timely  election  on  the  part  of 
the  optionee  in  accordance  with  the  terms  of  the  option.  Ac- 
cordingly, the  payment  or  tender  of  the  purchase  price  is 
important  in  determining  whether  or  not  the  optionee  has 
perfected  his  right  to  specifically  enforce  the  contract  or  in 

32.  Waterman   v.   Banks,    144   U.  36.  May  v.  Getty,  140  N.  C.  310, 
S.    394;     Richardson    v.    Hartwick,      S3  S.  E.  75. 

106  N.  W.  252.  37.  Cleaves  v.  Walsh,   125   Mich. 

„    .,,.,,  „,     ,       .0    «     T       638,  84  N.  W.  1108. 

33.  Meidhng    v.    Trefz,    48    N.    J. 

Eq.    638,    23    Atl.    824;     Boyden    v.  3S-  Turner  v.  McCormick,   56  W. 

Hill,   198   Mass.    477,   85   N.  E.   413.      Va"   161'   49   S"   E"   28'   107  Am'    St 

Reps.  904,  67  L.  R.  A.  853. 


34.  Eagle  v.  Pettus,  109  Ark.  310, 
159  S.  W.  1116. 


39.  Baxter   v.   Calhoun,    222   Fed. 
111. 

35.  Darragh  v.  Vicknair,   126  La.  40.  Ward  v.  Davis,  154  Mich.  413, 


171,  52  South  264.  117  N.  W.  897. 


580 


THE  LAW  OF  LAND  CONTRACTS 


[§255 


lieu  thereof  to  maintain  an  action  for  damages  by  virtue  of 
the  breach  in  case  the  optionor  should  refuse  to  consummate 
the  sale.  The  manner  of  exercising  an  option  is  governed  by 
the  language  of  the  instrument  granting  it. 

Where  payment  of  the  purchase  money  or  a  part  thereof 
must  accompany  the  election,  a  compliance  of  such  provision 
is  necessary  in  order  to  effect  a  binding  contract  of  sale.41 

However,  its  terms  may  require  merely  that  notice  be  given 
of  the  exercise  of  the  option  right  and  leave  the  matter  of  pay- 
ment to  be  thereafter  settled.42 

In  the  former  case,  payment  of  the  purchase  price  in  exer- 
cising the  option  is  a  condition  precedent  to  the  creation  of 
a  contract  of  sale.  In  the  latter  case,  there  is  an  election  to 
take  the  land  on  the  terms  proposed,  payment  of  the  pur- 
chase price  being  part  of  the  executory  contract  of  sale  brought 
into  existence  by  the  election.43 

Where  land  is  subject  to  an  encumbrance,  if  a  tender  of  the 
purchase  price  is  necessary  in  exercising  the  right  of  the  op- 
tion, the  amount  of  such  encumbrance  may  be  deducted,44  and 
it  has  been  held  that  a  strict  tender  may  be  dispensed  with 
where  the  encumbrance  is  of  such  a  nature  as  to  be  incapable 
of  ascertainment  without  a  judgment  of  the  court.45 

§  256.  Effect  of  Exercising  Option  or  Election. — If  the  priv- 
ilege of  electing  to  purchase  is  seasonably  exercised  in  accord- 
ance with  the  terms  of  the  option  contract,  an  executory  con- 
tract of  sale  arises,46  and  thereafter  the  parties  stand  in  the 


41.  Kelsey  v.  Crowther,  162  U. 
S.  404;  Martin  v.  Morgan,  87  Calif. 
203,  25  Pac.  350,  22  Am.  St.  Reps. 
240;  Trogden  v.  William,  144  N. 
Car.  192,  56  S.  E.  965,  10  L.  R.  A. 
New  Series  867;  Agar  v.  Streeter, 
183  Mich.  600,  150  N.  W.  160,  also 
see  note  24  L.  R.  A.  New  Series  9. 

42.  Horgan  v.  Russell,  24  N.  D. 
490,  140  N.  W.  99,  43  L.  R.  A.  New 
Series  1150. 

43.  Breen  v.  Mayne,  141  Iowa  399, 
118  N.  W.  441;  Watson  v.  Coast, 
35  W.  Va.  463,  14  S.  E.  249. 


44.  Smiddy  v.  Grafton,  163  Calif. 
16,  124  Pac.  433,  Anno.  Cases  1913, 
E.   923. 

45.  Rockland  Rockport  Lime  Co. 
v.  Leary,  203  N.  Y.  469,  97  N.  W. 
43,  L.   R.  A.   1916,  F.  352. 

46.  Horgan  v.  Russell,  24  N.  D. 
490,  140  N.  W.  89,  43  L.  R.  A.  N. 
S.  1150,  Ruling  Case  Law  346; 
Curran  v.  Rogers,  35  Mich.  221, 
Goldberg  v.  Drake,  145  Mich.  50, 
108  N.  W.  367. 


§258] 


OPTIONS 


581 


relation  of  vendor  and  purchaser  with  the  rights  and  remedies 
common  to  such  a  relation;  such  rights  and  remedies  being 
more  fully  treated  in  other  sections  of  this  book. 

§  257.  Against  Whom  Enforcible. — The  optionee  of  an  op- 
tion contract  may  enforce  the  same  not  only  against  the  op- 
tionor,  but  also  against  a  third  party,  who  is  a  purchaser  of 
the  optioned  property  with  notice  of  the  outstanding  option,  if 
notice  of  election  is  timely  given,47  and  the  fact  that  the  op- 
tionee in  an  option  contract  for  the  purchase  of  real  estate  may 
have  a  remedy  at  law  against  the  optionor  for  a  breach  of  the 
contract  to  convey  does  not  prevent  the  optionee  from  having 
specific  performance  of  the  contract,48  although  on  account  of 
the  particular  equities  involved  the  courts  have  held  other- 
wise.49 

The  option  contract  may  be  enforced  against  the  heirs,  dev- 
isees and  representatives  of  the  optionor  in  case  of  his  death 
before  the  right  of  election  has  been  exercised  by  the  op- 
tionee, providing  such  election  is  duly  made  within  the  speci- 
fied time,  and  in  accordance  with  the  requirements  of  the 
option  contract.60 

An  option  contract  cannot  be  enforced  against  third  persons 
who  become  purchasers  for  value  of  property  in  ignorance  of 
the  option.51 

§  258.  Remedies. — Inasmuch  as  an  option  contract  is  but  a 
continuing  effort  which,  when  supported  by  valuable  considera- 
tion, is  kept  open  for  a  specified  time,  or  if  no  time  is  specified, 
a  reasonable  time,  it  consequently  follows  that  until  there  is 


47.  Ross  v.  Parks,  93  Ala.  153, 
8  So.  368,  30  Am.  St.  Reps.  47,  11 
L.  R.  A.  148;  Smith  v.  Bangham, 
156  Calif.  359,  104  Pac.  689,  28  L.  R. 
A.  New  Series  522;  Anderson  v.  An- 
derson, 251  111.  415,  96  N.  E.  265, 
Ann.  Cases  1912,  C.  556;  Horgan 
v.  Russell,  24  N.  D.  490,  140  N.  W. 
99,  43  L.  R.  A.  U.  S.  1150. 

48.  Forney  v.  Birmingham,  173 
Ala.  1,  55  So.  618. 


49.  Rathbone  v.  Groh,  137  Mich. 
373,   100   N.  W.   588. 

50.  Witting's  Succession,  121  La. 
501,  46  So.  606,  15  Ann.  Cases  379; 
Rockland  Rockport  Lime  Co.  v. 
Leary,  203  N.  Y.  469,  97  N.  E.  43, 
Ann.  Cases  1913,  B.  page  62,  L. 
R.  A.  1916  F.  352;  Mueller  v.  Nort- 
man,  116  Wise.  468,  93  N.  W.  538, 
96   Am.    St.   Reps.    997. 

51.  Barrett  v.  McAlister,  33  W 
Va.  738,  11  S.  E.  220. 


582 


TPIE  LAW  OF  LAND  CONTRACTS 


[§258 


an  election  on  the  part  of  the  optionee  the  optionor  obtains 
no  rights  enforceable  under  the  option  contract.  After  a  proper 
and  timely  election,  however,  creating  a  mutually  binding  con- 
tract of  sale,  the  optionor  has  all  the  rights  and  remedies  com- 
mon to  such  contracts.52 

Likewise  when  the  optionee  has  made  a  timely  and  proper 
election,  a  breach  on  the  part  of  the  optionor  of  the  contract  of 
sale  brought  into  existence  by  the  election  entitles  the  op- 
tionee to  maintain  an  action  for  such  breach.63 

A  suit  for  specific  performance  54  or  an  action  to  recover  pay- 
ments made,  however,  if  the  optionee  has  made  no  election,  a 
breach  by  the  optionor  before  the  expiration  of  the  time  speci- 
fied ordinarily  entitles  the  optionee  to  recover  damages  for  the 
breach  of  the  option  contract  only,  but  even  after  a  breach  of 
the  option  contract  by  the  optionor  the  optionee  may  still 
make  a  timely  and  proper  election  within  the  specified  time, 
thus  creating  a  bilateral  contract  with  all  the  remedies  con- 
sequent thereto,  and  the  facts  of  the  case  may  be  such  that 
it  may  be  immaterial  whether  or  not  there  has  been  an  elec- 
tion.66 

§  259.  Specific  Performance.  —  Where  an  option  is  given 
upon  land  and  duly  converted  into  a  binding  contract  by  ac- 
ceptance in  accordance  with  its  provisions,  specific  perform- 
ance thereof  can  be  enforced.56 


52.  Sixta  v.  Ontonagon  Valley 
Land  Co.,  157  Wis.  293,  147  N.  W. 
1042;  Johnson  v.  Trippe,  33  Fed. 
530;  See  James,  on  Option  Con- 
tracts, Sec.  1101;  Castle  Creek  Wa- 
ter Co.  v.  City  of  Aspen,  146  Fed.  8. 

53.  Roper  v.  Milburn,  93  Neb. 
809,  142  N.  W.  792,  Ann  Cases  1914, 
B.  1225. 

54.  George  v.  Shuman,  202  Mich. 
241;  Sixta  v.  Ontonagon  Valley 
Land  Co.,  157  Wise.  293,  147  N.  W. 
1042. 


55.  Pearson  v.  Home,  139  Ga. 
453,  77  S.  E.  387. 

56.  Rude  v.  Levy,  43  Colo.  482, 
96  Pac.  560,  24  L.  R.  A.  (N.  S.) 
91,  27  Am.  St.  Reps.  123;  Rease 
v.  Kittle,  56  W.  Va.  269,  49  S.  E. 
150;  Smith  v.  Bangham,  156  Calif. 
359,  104  Pac.  689,  28  L.  R.  A.  (N. 
S.)  522;  Agar  v.  Streeter,  183  Mich. 
600,  150  N.  W.  160,  L.  R.  A.  1915, 
D.  106;  Mier  v.  Hadden,  148  Mich. 
488,  111  N.  W.  1040,  118  Am.  St. 
Reps.  586,  12  Ann.  Cases  88;  Black 
v.  Maddox,  104  Ga.  157;  George  v. 
Shuman,  202  Mich.  241. 


§260] 


OPTIONS 


583 


There  are  a  few  cases  that  refuse  specific  performance  on 
the  ground  of  lack  of  mutuality  of  obligation,  but  in  these 
cases  the  option  was  not  supported  by  valuable  consideration, 
and  consequently  nothing  more  than  a  continuing  offer  sub- 
ject to  withdrawal  at  any  time  before  acceptance,67  but  al- 
though not  supported  by  valuable  consideration,  such  a  pur- 
ported option  if  accepted  before  withdrawal  creates  a  mu- 
tually binding  contract  of  sale,  and  there  seems  to  be  no  sound 
reason  why  specific  performance  should  be  denied,  and  the 
following  cases  support  this  theory.58 

The  right  to  specifically  enforce  an  option  after  the  purchase 
of  real  estate  being  within  the  legal  discretion  of  the  court, 
specific  performance  may  be  refused  when  the  transaction 
is  tainted  with  fraud  or  procured  by  overreaching.59 

§  260.  Michigan  Decisions  on  Option — The  Option  Upheld. — 

In  the  accompanying  note  60  we  have  collected  those  Michigan 
decisions  where  the  option  has  been  upheld. 


57.  Litz  v.  Goosling,  93  Ky.  185, 
19  S.  E.  527,  21  L.  R.  A.  127. 

58.  Cheney  v.  Cook,  7  Wise.  413; 
Boston  &  N.  R.  Co.  v.  Bartlett,  3 
Gushing  224;  Ide  v.  Leiser,  10  Mont. 
5,  24  Am.  St.  Reps.  17,  24  Pac.  695; 
Donahue  v.  Potter  &  G.  Co.,  63 
Neb.  128,  88  N.  W.  171;  Perkins  v. 
Hadsell,  50  111.  216. 

59.  Wayne  Woods  Land  Co.  v. 
Beeman,  211  Mich.  360,  178  N.  W. 
696. 

60.  Where  plaintiffs  entered  into 
an  option  with  the  defendants  for 
the  purpose  of  purchasing  a  cer- 
tain tract  of  land  and  they  paid 
only  a  nominal  money  considera- 
tion, it  was  held  that  the  option 
was  valid  and  was  not  recoverable 
by  the  optioner  during  its  time 
limit.  Consideration  in  this  case 
was  $1.00  and  it  was  for  the  pur- 
chase of  37  acres  of  land  at  $1,000 
an  acre,  the  time  limit  to  be  one 


year.  The  defendants  attempted 
to  have  the  option  declared  void  on 
the  ground  that  an  unfair  price 
for  the  land  was  offered.  The  Court 
held  that  the  terms  of  the  option 
would  bind  the  defendants  and  it 
could  not  be  revoked.  George  v. 
Schuman,  202  Mich.  241. 

Where  the  plaintiffs  had  entered 
into  a  lease  for  certain  premises 
for  a  period  of  three  years  for  a 
certain  sum,  a  bill  for  specific  per- 
formance of  the  provision  to  pur- 
chase was  filed  by  the  plaintiffs 
after  they  had  tendered  the 
amount  of  the  purchase  price  as 
agreed  upon.  The  Court  held  that 
specific  performance  would  be  de- 
creed and  the  description  in  the 
lease  describing  the  premises  as 
being  at  a  certain  street  number 
was  held  to  be  sufficient  descrip- 
tion. The  lessor  in  this  case  oc- 
cupied the  premises  a  certain  pe- 
riod   after    the    expiration    of    the 


584 


THE  LAW  OF  LAND  CONTRACTS 


[§260 


lease  and  while  suit  was  pending 
and  it  was  held  that  the  lessor 
should  account  for  such  use  and 
occupation  at  the  time  of  the  filing 
of  the  bill.  Nowicki  v.  Kopelczak, 
195  Mich.  678. 

A  bill  was  filed  for  specific  per- 
formance of  a  contract  for  the  sale 
of  certain  real  estate  wherein  the 
property  was  owned  by  husband 
and  wife.  The  option  was  signed 
by  both  the  husband  and  wife, 
agreeing  to  sell  the  property  with- 
in a  certain  time,  but  the  defend- 
ants set  up  at  the  trial  that  the 
wife  was  not  named  in  the  option 
or  lease,  but  merely  signed  it  after 
her  husband  had  signed  it,  and  set 
up  further  that  the  option  was  void 
under  the  statute  of  frauds  because 
not  accepted  in  writing.  The  court 
held  that  the  option  was  signed  by 
both  parties  and  one  was  grantor, 
and  the  fact  that  the  other  was 
not  named  as  grantor  did  not  in- 
validate the  instrument,  and  that 
the  wife  signed  to  make  it  effec- 
tive, which  under  the  laws  of  this 
state  requires  that  a  deed  to  prop- 
erty held  by  entirety  be  signed  by 
both  husband  and  wife.  The  fail- 
ure of  the  wife  to  sign  the  option 
was  held  not  fatal  and  specific  per- 
formance was  decreed.  Agar  v. 
Streeter,  183  Mich.  600. 

The  defendants  in  this  case  exe- 
cuted a  contract  for  a  99-year  lease 
of  certain  property  with  the  pro- 
vision therein  that  the  plaintiff 
could  purchase  the  same  within  the 
time  of  the  lease  for  a  stated 
amount.  The  plaintiff  filed  a  bill 
for  specific  performance  of  the  con- 
tract and  the  defendants  set  up  as 
a  defense  that  the  agreement  was 
void  and  that  it  lacked  mutuality 
and   was    never   accepted    in    writ- 


ing by  the  plaintiff,  and  also  that 
the  agreement  was  indefinite  and 
un-certain.  The  court  held  that 
the  failure  of  the  lessee  to  sign 
the  instrument  was  not  material, 
citing  Smith  v.  Mathis,  174  Mich. 
262,  and  Mull  v.  Smith,  132  Mich. 
618. 

The  fact  that  the  agreement 
specified  the  rent  to  be  paid  so 
much  per  year  was  sufficiently  defi- 
nite to  be  susceptible  of  specific 
performance,  citing  Gibbens  v. 
Thompson,  21  Minn.  298. 

And  the  fact  that  no  time  was 
specified  for  the  purchase  of  the 
property  did  not  invalidate  the 
agreement,  for  the  plaintiffs  had 
the  right  to  purchase  the  property 
at  any  time  during  the  period  of 
the  lease  on  tendering  the  amount 
named.  Bushman  v.  Faltis,  184 
Mich.  172. 

Two  brothers  owned  property  to- 
gether and  held  themselves  out  as 
a  partnership.  One  of  the  partners 
gave  an  option  to  the  plaintiff  for 
the  sale  of  the  property  owned 
jointly  by  the  two  brothers.  Upon 
a  bill  for  specific  performance  the 
court  held  that  the  plaintiff  was 
entitled  to  specific  performance 
upon  the  ground  that  the  property 
was  held  as  partnership  property 
by  the  two  defendants,  although 
only  one  of  the  partners  signed 
the  option.  Nichols  v.  Burcham, 
177  Mich.  601. 

Plaintiff  entered  into  an  agree- 
ment for  the  lease  of  certain  prem- 
ises within  a  certain  period.  The 
plaintiffs  tendered  the  amount  of  the 
purchase  price  to  the  defendants 
and  demanded  a  deed  from  them, 
who  refused  to  carry  forth  the 
terms  of  the  agreement.  The  plain- 
tiff   continued    in    possession    and 


§261] 


OPTIONS 


585 


§  261.  Michigan  Decisions  on  Option — The  Option  Defeated. 

— In  the  accompanying  note  61  we  have  collected  a  number  of 
Michigan  decisions  where,  for  various  reasons,  the  option 
has  been  defeated. 


paid  rent  and  filed  a  bill  for  spe- 
cific performance.  The  court  en- 
tered a  decree  for  the  plaintiff  and 
stipulated  that  the  amount  of  the 
rentals  paid  by  the  plaintiff  after 
a  tender  and  demand  for  a  deed 
would  be  applied  on  the  purchase 
price.  Mentlikowski  v.  Wisniewski, 
173  Mich.  642. 

Where  brokers  obtained  an  op- 
tion from  the  owner  on  a  farm  to 
procure  a  purchaser  for  the  owner 
at  a  specified  price  within  a  given 
period,  the  brokers  are  entitled 
to  the  compensation  after  finding 
a  purchaser  who  is  ready  and  will- 
ing to  buy,  and  such  a  contract  is 
not  within  the  terms  of  the  stat- 
ute of  frauds.  Brittson  v.  Smith, 
165  Mich.  222. 

A  stipulation  in  a  lease  giving 
the  lessee  the  option  to  renew  the 
lease  and  to  purchase  the  property 
forms  a  part  of  the  inducement  for 
the  execution  of  the  lease,  is 
founded  on  a  sufficient  considera- 
tion, and  is  valid  though  it  is  uni- 
lateral in  the  sense  that  the  lessee 
is  under  no  obligation  to  renew  or 
purchase.  Wright  v.  Kaynor,  150 
Mich.  7. 

An  option  contract  for  the  pur- 
chase of  land,  though  it  gives  the 
purchaser  the  right  to  purchase 
or  not  at  his  option  and  gives  him 
the  choice  of  remedy  by  suit  for 
specific  performance  or  action  for 
damages,  while  limiting  the  vendor 
in  case  of  failure  to  purchase  to 
stipulated  damages  of  one  dollar, 
was    examined    and    held    not    un- 


conscionable.    Mier  v.  Hadden,  148 
Mich.    488. 

61.  Where  an  option  to  purchase 
property  at  a  specified  price  dur- 
ing the  term  of  a  lease  was  in- 
cluded in  the  lease,  it  is  necessary 
that  the  plaintiff  tender  or  make 
payment  of  the  purchase  price  dur- 
ing the  life  of  the  lease  before  he 
is  entitled  to  maintain  a  suit  for 
specific  performance.  A  failure  to 
tender  the  amount  or  to  make  pay- 
ment is  a  sufficient  ground  to  deny 
relief  to  one  asking  for  specfiic 
performance.  Law  v.  McKechnie, 
202  Mich.  284. 

Plaintiff,  a  keen,  shrewd  business 
man  and  lawyer,  took  an  option  on 
land  to  convey  by  warranty  deed 
certain  premises  signed  by  only  two 
of  three  sisters  owning  the  prem- 
ises by  joint  tenancy.  The  sis- 
ters were  about  70  years  of  age 
and  were  not  familiar  with  busi- 
ness or  real  estate  and  plaintiff  did 
not  explain  to  them  the  real  situ- 
ation, that  they  would  be  unable 
to  fulfill  the  contract  without  their 
sister's  signature,  who,  to  his 
knowledge,  refused  to  sign.  The 
court  held  that  he  was  guilty  of 
such  overreaching  in  the  procure- 
ment of  the  option,  although  it  did 
not  amount  to  actual  fraud,  that 
a  court  of  equity  would  refuse  spe- 
cifically enforce  the  option.  Wayne 
Wood  Land  Co.  v.  Beeman,  211 
Mich.  360. 

Acceptance  of  the  terms  of  an 
option  requires  an  unconditional 
assent  to  its  terms,  and  letter  sug- 


586 


THE  LAW  OF  LAND  CONTRACTS 


[§262 


§  262.  Michigan  Decisions  on  Option — Controversy  as  to  the 
Character  of  the  Instrument. — In  the  accompanying  note  62 
we  have  collected  a  number  of  Michigan  decisions  where 
controversy  has  arisen  over  the  character  of  the  instrument. 


gesting  a  change  in  description, 
inclosing  a  deed  describing  the 
property  by  dimensions  rather  by 
the  terms  used  in  the  option,  was 
a  counterproposition  and  did  not 
create  a  contract.  Weadock  v. 
Champe,  193  Mich.  553. 

It  was  fraud  for  the  holder  of 
an  option  on  real  property  to  repre- 
sent to  a  prospective  purchaser 
that  he  had  an  option  on  the  prop- 
erty for  $2,500,  for  which  price  he 
would  sell,  when  in  fact  the  op- 
tion vested  the  purchase  price  at 
$2,000.  McGough  v.  Hopkins,  172 
Mich.  580. 

Specific  performance  was  prop- 
erly denied  upon  a  record  showing 
that  plaintiff,  real  estate  broker, 
obtained  from  the  owner  of  a  farm 
an  option  in  writing  to  sell  the 
farm  on  terms  stated  therein,  and 
that  plaintiff  read  the  instrument 
to  the  defendant,  omitting  the 
clause  relating  to  the  considera- 
tion, and  a  clause  requiring  a  60- 
day  notice  in  writing  of  the  defend- 
ant's intention  to  terminate  his  op- 
tion, and  that  the  defendant,  the 
grantor  and  owner,  was  old,  feeble, 
and  in  ill  health  and  relied  upon 
the  plaintiff  to  read  the  paper  to 
him  and  subsequently  attempted  to 
revoke  the  option  according  to  the 
provisions  as  he  heard  it  read. 
Van  Deusen  v.  Brown,  167  Mich.  49. 

An  option  given  by  the  owner 
of  land  providing  that  on  or  be- 
fore a  certain  date  he  would  give 
a  warranty  deed  of  the  property 
and  an   abstract  to   date,   showing 


perfect  title  upon  the  payment  of 
the  stipulated  price  within  the  time 
mentioned,  only  entitles  the  pur- 
chaser to  a  deed  and  abstract  when 
payment  of  the  price  is  made  with- 
in the  time  limited;  and  where  the 
holder  of  the  option  neither  ac- 
cepts it  in  writing  nor  tenders  the 
price  within  the  time  limited,  his 
right  is  lost,  although  he  demands 
the  deed  and  abstract  and  states 
that  payment  will  be  made  when 
satisfactory  title  is  furnished. 
Cameron  v.  Shumway,  149  Mich. 
634. 

A,  by  letter,  asked  B  for  an 
option  for  six  months  to  purchase 
certain  real  estate.  B  replied  by 
letter,  giving  an  option  for  six 
months  for  $2,500.  A  accepted  and 
notified  B  that  they  were  ready 
to  take  the  deed.  B  then  prepared 
the  deed  and  brought  it  to  A  to 
consummate  the  agreement.  B 
asked  for  ten  days  in  which  to  pro- 
cure the  money.  The  deed  was 
left  in  escrow,  to  be  delivered  upon 
the  payment  of  the  money,  and  no 
further  steps  were  taken  until  the 
last  day  provided  by  the  original 
offer.  Held,  that  the  original  offer 
was  superseded  by  the  subsequent 
agreement  and  that  A  lost  all  right 
of  purchase  by  his  failure  to  com- 
ply with  that  agreement.  Cleaves 
v.  Walsh,  125   Mich.   638. 

62.  In  a  suit  for  the  specific  per- 
formances of  a  ninety-day  option 
for  the  purchase  of  land,  defend- 
ants' contention  that  the  contract 
was  void  because  not  accepted  in 


§262j 


OPTIONS 


writing  as  required  by  the  stat- 
ute of  frauds,  caunot  be  sustained 
where,  after  the  defendants  refused 
to  perform,  suit  was  commenced 
within  ninety  days  and  the  evi- 
dence showed  that  plaintiff  paid 
into  court  the  down  payment  called 
for,  and  tendered  the  note  and 
mortgage  as  provided  in  the  con- 
tract, with  a  written  statement  that 
he  was  ready  to  sign  same  when 
deed  to  him  was  made.  Frischkorn 
v.  Fitzgerald,  215  Mich.  106. 

An  oral  agreement  for  the  lease 
of  land  for  two  years  with  the  op- 
tion of  purchase  is  a  valid  lease 
for  one  year  only,  and  the  right  of 
purchase  which  ran  with  said  oral 
lease  was  relieved  of  the  statute 
of  frauds  by  possession  and  part 
performance,  and  by  section  11979, 
3  Comp.  Laws  1915  (Mich.),  which 
preserves  the  power  of  chancery 
courts  to  compel  specific  perform- 
ances of  oral  agreements  relating 
to  real  estate  in  case  of  part  per- 
formance, the  plaintiff  is  entitled 
to  specific  performance  of  his  oral 
agreement  by  tender  of  the  agreed 
price  in  a  court  of  chancery.  Lyle 
v.  Munson,  213  Mich.  250. 

A  memorandum  of  agreement  re- 
lating to  the  sale  of  land  which 
contains  no  obligation  to  purchase 
and  makes  reference  to  a  "prior 
option"  with  the  terms  of  which 
both  parties  are  familiar,  and  pro- 
vides that  a  deed  will  be  given  on 
a  compliance  with  the  "terms  of 
this  option"  and  that  on  failure  to 
make  the  stipulated  payment  the 
instrument  will  be  canceled,  con- 
stitutes a  mere  option  and  not  an 
agreement  for  the  sale  and  pur- 
chase of  land,  even  though  the  par- 
ties are  designated  as  seller  and 
purchaser  and  other  language  more 


properly  belonging  in  an  agreement 
is  used,  since  the  absence  of  an 
obligation  to  purchase  is  the  dis- 
tinct characteristic  of  an  option 
contract.  Tattan  v.  Bryant,  198 
h.  550. 

The  conveyance  of  land  in  con- 
sideration of  a  certain  sum  of 
money  and  an  agreement  by  the 
vendee  to  reconvey  within  three 
years,  if  the  vendor  should  so  elect 
and  tender  the  money,  must  be 
treated  as  an  absolute  conveyance 
of  laud  with  an  option  to  repur- 
chase and  not  as  a  mortgage. 
Gogarn  v.  Connors,  188  Mich.  161; 
Sowles  v.  Wilcox,  127  Mich.  166; 
Bloomberg  v.  Beekman,  121  Mich 
647. 

A  contract  relating  to  the  pur- 
chase of  land  wherein  the  owner 
agrees  to  sell,  and  the  vendee 
agrees  to  buy,  property  described 
in  the  agreement  at  a  stated  pur- 
chase price  of  which  $100  was  pay- 
able at  the  execution  of  the  con- 
tract, $-100  when  an  abstract  of  title 
was  passed  upon,  and  the  balance 
in  semi-annual  payments  of  $100 
each  with  interest,  wherein  the 
vendor  also  agreed  to  furnish  a 
quitclaim  deed  releasing  the  prop- 
erty from  certain  restrictions,  pos- 
session to  be  given  and  the  deal 
consummated  with  thirty  days,  was 
not  an  option  by  an  executory  con- 
tract for  the  sale  of  real  estate. 
Solomon  v.  Schewitz,  1S5  Mich.  621. 

The  conduct  of  a  prospective 
purchaser  of  land  in  going  into 
possession  under  an  instrument 
claimed  by  him  to  be  an  option 
merely,  in  making  payments  in  ac- 
cordance with  its  terms,  and  in 
permitting  a  railroad  company  to 
enter  upon  and  construct  an  ele- 
vated road  across  the  propery  men- 


588 


THE  LAW  OF  LAND  CONTRACTS 


[§262 


tioned,  amounted  to  an  irrevocable 
election  to  purchase.  Procter  v. 
Plummer,  112  Mich.  393. 

Options — Acceptance 

In  order  to  accept  an  option  so 
that  it  becomes  a  binding  contract 
either  one  of  two  things  must  be 
done.       Either    the    consideration 


must  be  paid  or  a  written  accept- 
ance must  be  made. 

See  Pangburn  v.  Sifford,  216 
Mich.  163,  citing  Wilkinson  v.  Heav- 
enrich,  58  Mich.  574;  Hollingshead 
v.  Morris,  172  Mich.  126;  Mier  v. 
Hadden,  148  Mich.  488,  618;  Agar 
v.  Streeter,  183  Mich.  608,  L.  R.  A. 
1915  D.,  196  Annotated  Case  1916, 
E,  page  518. 


Table  of  Cases 

Cited  in  The  Law  of  Land  Contracts 


[References  are  to  Sections] 


Abbott   v.    Gregory    (39    Mich.    68), 

226. 
Abell  v.  Munson  (18  Mich.  312),  20. 
Abright  v.  Stockhill  (208  Mich.  469), 

214,  218. 
Acme    Elec.    Co.    v.    Van    Derbeck 

(127    Mich    341,    89   Am.    St.    176, 

Rep.  476),  100,  96. 
Ada    Dairy    Assn.    v.    Mears     (123 

Mich.  470),  16. 
Adams   v.    Cowherd    (30    Mo.    460), 

144,  43. 
Adler  v.  Katus  (190  Mich.  86),  10,  IS. 
Agar    v.    Streeter    (183    Mich.    600, 

150  N.  W.  160   (now)   24  L.  R.  A., 

new   series   9),   255,   259. 
Alexander     v.     Hodges     (41     Mich. 

691-694),   144. 
Alderman  &  Sons  Co.  v.  McKnight 

(78    S.    E.    982,    95    S.    Car.    245), 

74. 
Aldrich    v.     Schribner     (148    Mich. 

609),  204. 
Aldrich     v.     Scribner     (146     Mich. 

609),  228. 
Allen  v.  Cadwell   (55  Mich.  8),  117. 
Allen  v.  Peckwitz    (103   Cal.  85,  36 

Pac.  1039,  42  A.  S.  R.  99),  78. 
Allen  v.  Kirk  (219  Pa.  574,  69  Atl. 

50),  110. 
Allen  v..  Caldwell  (55  Mich.  8),  58. 
Allen  v.  Mohn  (86  Mich.  328),  114. 
Allen  v.  Falbat  (170  Mich.  664),  218. 
Allison  v.  Word  (63  Mich.  128),  207. 
Allen  v.  Atkinson  (21  Mich.  351)  219. 
Allread  v.  Harris  (75  Ga.  687),  215. 


Alston  v.  Oregon  Power  Co.  (Ore.) 

(76  Pac.  964,  American  and  Eng. 

Enc.    Law,    2nd    Vol.    26,    p.    59), 

214. 
Appleby    v.     Sperling     (194    Mich. 

681),  224. 
Appeal   of  Nellie   Lewis    (85   Mich. 

340),  45. 
Anderson    v.    Baughman     (7    Mich. 

69),   18. 
Anderson    v.    Carkins    (135    U.    S. 

4831),  96. 

Anderson    v.    Kennedy    (51    Mich. 
467),  113. 

Anderson     v.     Anderson     (251     111. 

415,   96    N.    E.   265,   Anno.   Cases 

1912-C  556),  257. 
Andrew    v.     Meyerdirch     (87     Md. 

511,  40  Atl.  173,  175),  172,  252. 
Armitage    v.    Tall    (64    Mich.    412), 

86. 

Arthur    v.    Cheboygan    (156    Mich. 

152),   97,   104. 
Aspell   v.   Hosbein    (98   Mich   117), 

100. 

Aspenwell  v.  Vanderbeck  (127  Mich. 

341),  96. 
Assurance     Co.     v.     Det.     Common 

Council    (176   Mich.   SO),   59. 
Atkinson  v.  Akins   (197  Mich.  297), 

58. 
Attebery  v.   Blair    (244    111.   363,   91 

N.   E.  475,  135  A.   S.   R.  231),   78. 
Auditor   Gen'l   v.   Fisher    (S4    Mich. 

128),  43,  132. 


590 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 
Aullman  Miller  &  Co.  v.  Pettys  (59 

Mich.  486),  54. 
Austin  v.  Dalbee    (101   Mich.   292), 

IS. 
Aville  v.  Periera    (120  Cal.  589,   52 

Pac.  840),  172. 
Axe  v.  Talbert   (179  Mich.  556,  146 

N.  W.  418),  108,  248. 
Axtec  Copper  Co.  v.  Aud.  Gen'l  (128 

Mich.  620),  82. 
Axtel  v.  Chase  (77  Ind.  14),  231. 
Ayers  v.  Gallup  (44  Mich.  13),  10. 

B 

Baker  v.  Clark  (52  Mich.  22),  43. 
Baldwin    v.    Trimble    (85    Md.    396, 

37  Atl.  176,  36  L.  R.  A.  489),  78. 
Bailer  v.   Spivack    (213   Mich.  436), 

95. 
Bailer  v.   Spivack   (213   Mich.  921), 

15. 
Banaghan    v.    Malaney    (200    Mass. 

46,   128   Am.    St.   Rep.   378,   19  L. 

R.  A.   (N.   S.)    871,  85  N.  E.  839), 

106. 
Banghman  v.  Gould  (45  Mich.  481), 

211. 
Banski  v.  Michalski  (204  Mich.  15), 

210,   228,    236. 
Baptiste    v.    Peters    (51    Ala.    159), 

215. 
Barber   v.   Harris    (N.    Y.    1836,    15 

Wends   615),  43. 
Barnard  v.  Brown   (112  Mich.  452), 

70. 
Barker  v.   Finley    (200   Mich.   166), 

112. 
Barley  v.  Wells  (8  Wis.  141,  76  Am. 

Dec.  233),  172. 
Barnard  v.  Brown   (112  Mich.  452), 

62. 
Barnes    v.    Gilmore    (6    N.    Y.    Civ. 

Prac.  R.  286),  231. 
Barnes  v.  Husted   (219  Pa.  St.  287, 

68  Atl.  839),  245. 


to  Sections] 

Barnhardt    v.    Hamel     (207     Mich. 

232),  204,  213,  236. 
Earre  v.  Fleming  (29  W.  Va.  314), 

78. 
Barrett  v.    McAllister    (33   W.   Va. 

738,  11  S.  E.  220),  257. 
Bartlett  v.  Smith    (146  Mich.  188), 

219. 
Bartlett  v.  Bartlett  (103  Mich.  296), 

10,  62. 
Bartlett  v.  Bartlett  (103  Mich.  293, 

61  N.  W.  500),  21. 
Bascombe  v.  Beckwith   (L.  R.  A.  8 

Eq.  100),  110. 
Batt  v.   Mollon    (151  Mass.   477,   25 

N.  E.  17,  7  L.  R.  A.  84),  78. 
Bauer  v.  Long  (147  Mich.  351),  43. 
Bawden  v.  Hunt  (123  Mich.  296),  18. 
Baxter   v.    Ogooshevitz    (205    Mich. 

249-256),  198. 
Bay   County   v.   Bradley    (39   Mich. 

163),  156. 
Baylor  v.  Hanover  Fire  Ins.  Co.  (67 

Mich.  179),  198. 
Bayne  v.   Wiggins    (139  U.   S.   210, 

35  L.  Ed.  144),  10. 
Baxter  v.   Calhoun    (222  Fed.   Ill), 

254. 
Bayliss  v.  Pricture's  Est.    (24  Wis. 

651),  19. 
Ball  v.  Harpman   (140   Mich.   661), 

19. 
Barron    v.    Barron    (Ala.)     (25    La. 

55),  76. 
Beach  v.  Miller  (51  111.  206),  78. 
Bearse  v.   Aldrich    (40    Mich.    529), 

162. 
Beebe  v.  Lyle  (73  Mich.  114)  43a. 
Behr    v.    Hurwitz    (N.    J.    Eq.,    105 

Atl.   486),   253. 
Behrens  v.  Claudy   (50  Wn.  400,  97 

Pac.  450),  172. 
Benedick  v.  Pincus   (191  N.  Y.  377, 

84  N.  E.  284),  245. 
Bennett  v.  Harper   (36  W.  Va.  546, 

15  S.  E.  143),  214. 


TABLE  OF  CASES 


591 


[References  are 
Bennett  v.  Hickey  (112  Mich.  379), 

216,  217. 
Benedict  v.  Bird  (103  Iowa  612),  20. 
Benson  v.  Shotwell  (87  Calif.  49,  23 

Pac.  249).  250. 
Berger  v.  Roe   (179  Mich.  184),  79, 
Berry  v.  Humphries  (76  W.  Va.  668, 

86  S.  E.  568),  250. 
Berston  v.  Gilbert   (190  Mich.  638), 

18. 
Berston  v.  Gilbert  (180  Mich.  638), 

18. 
Bertram  v.  Cook  (44  Mich  396),  151. 
Bidler   v.   Robinsog    (73    N.    J.    Eq. 

169),  43. 
Bignell  v.  Franks   (212  Mich.  236), 

196-A,  18. 
Bilansky  v.  Hogan  (190  Mich.  463), 

122. 
Bird  v.  Stark  (66  Mich.  654),  74. 
Bird  v.  Hall  (30  Mich.  374),  109,  116. 
Birney  v.  Ready  (216  Mich.  7),  112, 

143. 
Black  v.  Maddox  (104  Ga.  157)  2^9. 
Blampey  v.   Pike    (155   Mich.   384), 

204,  213. 
Blanchard  v.   Det.   L.    &   L.   R.   Co. 

(31  Mich.  43),  20,  109. 
Blanchard   v.   R.   R.   Co.    (31   Mich. 

43),   112. 
Elanchard  v.  Det.  L.   &   L.   R.   Co. 

(31  Mich.  43),  109. 
Blanck  v.  Sadlier  (153  N.  Y.  551,  47 

N.  E.  920),  78. 
Bland  v.  Bland  (213  Mich.  549),  121. 
Bledsoe  v.  Games  (30  Mo.  448),  62. 
Board   v.   Wilson    (34   W.   Va.    609, 

S.  E.  778),  62. 
Boddy   v.    Henry    (126    La.    31,    101 

N.  W.  497),  211. 
Bond  Foster  Lbr.   Co.  v.   Northern 
Pac.  R.  R.  Co.  (53  Wash.  302,  101 
Pac.  877),  172. 
Boorum  v.  Tucker  (51  N.  J.  Eq.  135, 
26  Atl.  456),  110. 


to  Sections] 

Bomier  v.  Caldwell    (8   Mich.   463), 

10. 
Boone  v.  Chiles   (10  Pet.  177,  9  L. 

Ed.   338),   214. 
ton   R.   R.   v.    Rase    (194    Mass. 

142,  80  N.  E.  498),  253. 
Boston  &  M.  R.  Co.  v.  Bartlett    (3 

dishing  224),  259. 
Bostwick  v.  Hess  (80  111.  138),  253. 
Bourget  v.  Monroe   (58  Mich.  563), 

109. 
Bowen   v.   Lansing   (129   Mich.   119- 

121),   186. 
Bowen  v.  Lansing   (129  Mich.   117, 

119-121),  43. 
Bower  v.    McCarthy    (85    Mich.    26, 

48  N.  W.  155),  254. 
Bowman   v.   Cork    (106  Mich.   163), 

97,  112. 
Boyntan    v.    Veldman     (131    Mich. 

555),  77. 
Bosswell's  Lessee  v.  Otis   (9  How. 

336),  116. 
Brackenridge  v.  Cloridge  (Tex.;  43 

L.  R.  A.  593),  244. 
Bradley  v.  May  (214  Mich.  194),  114, 

120. 
Bradley  v.  Curtis   (79  Ky.  327),  43. 
Bradway  v.  Miller  (200  Mich.  64S), 

63,  122. 
Breen  v.   Mayne    (141   la.   399,   US 

N.  W.  441),  253. 
Breen  v.  Mayne,  255. 
Brewer  v.  Dodge  (28  Mich.  359),  115. 
Bretz  v.  Hitchcock  (188  Mich.  327), 

86. 
Brewer  v.  Herbert  (30  Md.  301,  96 

Am.  Dec.  582),  23,  78. 
Bridgeman  v.  Mclntyre   (150  Mich. 

78),  115. 
Brin  v.  Michalski   (188  Mich.  401). 

99,  109. 
Brigham    v.   Rean    (138   Mich.    256, 

102  N.  W.  S45),  72. 
Brigga   v.    Briggs    (113    Mich.   371), 

112. 


592 


THE  LAW   OP   LAND   CONTRACTS 


[References  are  to  Sections] 

Brin  v.  Michalski   (188  Mich.  400),  Burchard  v.  Frazer  (23  Mich.  224), 

17.  211. 

Brewing    Co.    v.    Judge    (108    Mich.  Burk  v.  Hill   (48  Ind.  52),  78. 

356) (  164.  Burch  v.  Taylor  (152  U.  S.  634,  38 
Brosman  v.  McGee   (63  Mich.  454),  L.  Ed.  578),  172. 

19_  Burt  v.  Klixby  (75  Mich.  311),  198. 

Brooks  v.  Kearns    (86  111.  547),  64.  Burk  v.  Seeley  (46  Mo.  334),  109. 

Brown    v.     McCormick     (28     Mich.  Burt  v.  Mason   (97  Mich.  129),  225. 


214),   54. 
Brown   v.   Pierce    (7   Wall   205,    19 

Led.  134),  231. 
Brown   v.    Pollard    (89   Va.    696,    17 

S.  E.  6),  21. 
Brown     v.     McGraw      (14     Peters 

(U.S.)  493),  24. 
Bruner  v.  Miller  (59  W.  Va.  36,  52 

S.  E.  995),  215. 
Bryan  v.  Hauseman  Spelzley  Corp. 

(213  Mich.  236),  213,  215. 
Brodway  v.  Miller   (200  Mich  648), 

114. 
Bryant  v.  Booze  (55  Ga.  438),  109. 
Buchoz    v.    Walker    (19/224),    115, 

102. 
Buchan  v.  Ger.  Amer.  Land  Co.  (180 

Iowa  911,  164  N.  W.  119),  78. 
Buck  v.  Smith   (29  Mich.  166),  109, 

112. 
Buell  v.  Irwin  (24  Mich.  145),  151. 
Bugaski  v.   Snika   (200  Mich.  418), 

171. 
Bugajski  v.  Siwka   (200  Mich.  415), 

150. 
Buhler     v.     Trombley     (139     Mich. 

557),  20. 
Bullock  v.   Taylor    (39   Mich.   137), 

145. 
Bumpus  v.  Bumpus  (53  Mich.  347), 

96. 
Bunce    v.    Bidwell    (43    Mich.    542), 

70,    152. 
Burbach    v.    Walker    &    Son     (132 

Mich.  93),  86. 
Burch  v.  Stringham   (210  Mich.  48), 

257. 


Burton   v.    LeRoy    (5    Sawy.    510), 

105. 
Burton  v.  Shotwell   (13  Buch.  271), 

109. 
Bushman  v.  Faltis  (184  Mich.  172), 

18. 
Butler  v.   Bertrand    (97    Mich.    50), 

160. 
Butler  v.  Gale    (27  Vt.  739),  78. 
Butler  v.  R.  R.   (85  Mich.  246),  94. 
Buxton  v.   Mason    (120  Mich.   522), 

216,    217. 

C 
Cain   v.    Masurette    (196    Mich.   7), 

242-244. 
Cameron    v.    Shumway    (149   Mich. 

634,  113,  N.  W.  287),  245,  252. 
Canton   v.   Irvine    (194   Mich.   165), 

122. 
Canon   v.    Farmers    Bank    (3    Neb. 

348,  91  N.  W.  585),  209. 
Carley    v.    Thompson     (196     Mich. 

713),   70. 
Carnell  v.  Norton   (188  Mich.  187), 

171. 
Carnell  v.  Norton   (188  Mich.  191), 

149. 
Carning  v.  Loomis   (111  Mich.  23), 

155. 
Carmichael  v.  Carmichael  (72  Mich. 

85),   19. 
Carpenter   v.   Dennison    (208   Mich. 

441),  79. 
Carley  v.   Gitchell    (105   Mich.   38), 

96. 
Carr  v.  Leavitt  (54  Mich.  540),  13. 
Carroll    v.    Rice    (Walk.    Ch.    373), 

214. 


TABLE  OF  CASES 


503 


[References  are 
Carter  v.  Reaume   (159  Mich.  160), 

144. 
Carter  v.  Couch  (84  Fed.  735),  216. 
Casgrain   v.   Hammond    (134    Mich. 

419),  79. 
Castle  Creek  Water  Co.  v.  City  of 

Aspen  (146  Fed.  8),  258. 
Casset  v.  O'Riley   (160  Mich.  101), 

204. 
Cathcart  v.  Robinson  (5  Pet.  U.  S. 

264,  8  L.  Ed.  120),  105. 
Chandler    v.    McKinney     (6    Mich. 

322),  98. 
Chaney   v.   Coleman    (77   Tex.   100, 

142   S.  W.   370),  231. 
Chambers   v.   Livermore   (15   Mich. 

381),  105. 
Chapin  v.  Balles   Iron  Works   (213 

Mich.  515),  244. 
Cheney  v.  Belby  (74  Fed.  52),  172. 
Cheney  v.  Cook   (7  Wis.  413),  259. 
Chandler    v.    Graham     (123    Mich. 

327),   79. 
Chesborough    v.    Wizard    Inv.    Co. 

(156  Ky.  149,  160  S.  W.  725),  251. 
Chicago   Attachment    Co.   v.   Davis 

S.   M.   Co.    (142  111.   171,  31   N.   E. 

438,  15  L.  R.  A.  754),  21,  62. 
Chicago,    etc.,    R.    R.    Co.    v.    Lane 

(150    Mich.    162,    113    N.    W.    22), 

103. 
Chilton  v.  White  (78  S.  E.  1048,  72 

W.  Va.  545),  74. 
Churchill  v.   Morse    (23   Iowa  229), 

172. 
Charlet  v.  Trackle  (197  Mich.  426), 

121. 
Chute  v.  Quincy  (156  Mass.  189,  30 

N.  E.  550),  110. 
Cilley     v.     Burkholder     (41     Mich. 

749),  20. 
Circuit  Court  Rules,  21,  24,  25. 
City  of  Marquette  v.  Iron  Co.   (132 

Mich.  130),  43,  172. 


to  Sections] 
City  of  Houston  v.  Finnegan  (Tex.) 

(85  S.  W.  470),  74. 
Clark  v.  Rosario  Mining  &  Milling 

Co.    (176    Fed    180,    99    C.    C.    A. 

534),  106. 
Clark  v.   Johnson    (214   Mich.   578), 

197,  198,  203. 
Cleaves   v.   Walsh    (125   Mich.   638, 

84  N.  W.  1108),  254. 
Cleveland  v.   Berger  Bldg.   &  Imp. 

Co.    (N.  J.   Eq.,  55  Atl.   117),  186. 
Cleveland  Refining  Co.  v.  Dunning 

(115  Mich.  238),  16. 
Climer  v.  Haney  (15  Mich.  22),  10. 
Clithero  v.   Fenner    (122   Wis.   356, 

99  N.  W.  1027),  76. 
Close  v.   Stuyvessant    (132  111.   607, 

24  N.  E.  868,  3  L.  R.  A.  161),  78. 
Cochran  v.  Stoman  (201  Mich.  639), 

242. 
Cochrane    Timber    Co.    v.    Fisher 

(190  Mich.  478),  86. 
Coffee  v.  Newson   (2  Ga.  422),  205. 
Cole  v.  Cole  Realty  Co.   (169  Mich. 

347,  36  Cyc.  686),  104. 
Cole  v.  Cole   (41  Md.  301),  97,  109. 
Cole  v.  Judge  (106  Mich.  692),  164. 
Coleman   v.   Floyd    (131    Ind.    130), 

186. 
Coleman  v.  Applegarth   (68  Md.  21, 

6  Am.  St.  Rep.  417,  11  Atl.  Rep. 

284),  246. 
Coleman  v.  Appelgarth  (68  Md.  21, 

11  Atl.  284,  6  Am.  St.  Reps.  417), 

253. 
Coles    v.    Trecothick    (9    Ves.    234, 

246),  23. 
Colgrove     v.     Solomon     (34     Mich. 

494,  499,  500),  10. 
Collingshead   v.   Morris    (172    Mich. 

127),  15. 
Colharin  v.  Knack  (133  Mich.  335), 

98. 
Colonna  Dry  Dock  Co.  v.   Colonna 

(108  Va.  230,  61  S.  E.  770),   106. 


594  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Sections] 

Columbine  v.  Chichester  (2  Phil  C.  Covert  v.  Morrison   (49  Mich.  133), 

27),  109.  151,   156. 

Clark  v.  Hollman  (204  Mich.  62),  18.  Covada  v.  Diaz  (37  Philippine  Rep. 

Collier   v.    Couts    (92    Tex.    234,    47  982),  250. 

S.  W.  525),  76.  Cowart  v.  Singletary  (79  S.  E.  196, 

Compau  v.  Compau    (44   Mich.  31),  47    L.    R.    A.     (N.    S.)     621,    140 

72.  Anno.),  172. 

Compau  v.  Lafferty  (50  Mich.  114),  cox  v.  Halkerboer   (200  Mich.  86), 

79.  218. 

Conley  v.   Finn    (177   Mass.   70,   50  Cragg  v.  Holmes  (18  Ves.  14,  Note 

N.  W.   460,   68   A.   S.   R.  399),   78.  12),  101. 

Converse  v.  Blumvch  (14  Mich.  109,  Craig  v.  Crossman  (209  Mich.  463), 

90  Am.  Dec.  230),  147.  97. 

Conrad  v.  Long  (33  Mich.  78),  151,  Crawford    v.    Cecattle    (186    Mich. 

156.  270),  244. 

Connor   v.    Det.   Term.   R.   R.    (183  Crosby  v.   City  of  Greenville    (183 

Mich.  241),  86.  Mich.  452),  74. 

Connecticut   Mut.   Life   Ins.   Co.   v.  Croskery  v.  Bush   (116  Mich.  288), 

Wood    (115  Mich.   254),  82.  82. 

Cook  v.  Clinton  (64  Mich.  309),  74.  Cross  v.  Buskirk-Rutledge  Lbr.  Co. 

Cooper  v.  Pierson  (212  Mich.  657),  (139  Tenn.  79,  201  S.  W.  151),  78. 

15,  18.  Crooks  v.  Whitford  (47  Mich.  286), 

Copeland    v.     McAdery     (100    Ala.  is. 

553),  78.  Crowder  v.  Searcy   (103  Mo.  97,  15 

Capper  v.  Brown  (76  N.  J.  Eq.  406),  g.  w.  346),  231. 

23.  Crump   v.    Berdan    (97    Mich.    295), 

Corning  v.  Loomis   (111  Mich.  23),  145. 

177.  Cue   v.    Johnson    (85   Pac.    598,    73 

Coryell    v.    Hotchkiss     (130    Mich.  Kans.  558),  150. 

400),  58.  Culver   v.   Avery    (161    Mich.   323), 

Corry  v.   Smalley    (106   Mich.   260),  213. 

62,  216.  Cummings  v.  Lake  Realty  Co.   (86 

Corning  v.  Loomis   (111  Mich.  23),  Wjs.  332,  57  N.  W.  431),  253. 

15,  177.  Cummings  v.  Dolan  (52  N.  W.  496, 

Cornell   v.   Crane    (113   Mich.   460),  100  Pac.  989),  78. 

216.  Curran    v.    Rogers    (35    Mich.    220, 

Corby     v.     Thompson     (196     Mich.  221),  77,  256. 

706),  72.  Curry  v.  Curry  (213  Mich.  316),  144. 

Corrigan    v.     Hinkley     (125     Mich.  Curry  v.  Curry   (213   Mich.  309,  39 

125),  82.  Cyc.  1384),  24. 

Corrigan  v.  Ralph    (265  111.  107,  N.  Curtis  v.  Buckley  (14  Kan.  449),  62. 

E.  155),  101.  Curtis  v.  Abbott  (39  Mich.  440,  441), 

Coulter  v.  Lavinger  (212  Mich.  272),  10,  20. 

172  Curtis    v.    Miller    (184    Mich.    151), 

Courtney   v.    Ashcraft    (105    S.   W.  145. 

106,  31  Ky.  Law  Ry.  1324),  74.  Cutter  v.  Wait  (131  Mich.  509),  209. 


TABLE  OF  CASES 


595 


Daily   v.    Litchfield    (10    Mich.    29), 

145. 
Dakin  v.  Sokin  (97  Mich.  284),  112. 
Daley  v.  Litchfield   (10  Mich  29,  36 

Cyc.  706),  24,  43a. 
Dalton  v.  Mertz  (197  Mich.  390),  43a. 
Darling    v.    Huff    (175    Mich.    304), 

27,  204. 
Darr  v.  Mummert  (57  Neb.  378,  77 

N.  W.  767),  250. 
Darrah  v.   Kadison    (55   Pa.   Super. 

Ct,  335),  74. 
Darragh  v.   Vicknair    (126   La.   171, 

52  S.  264),  254. 
Davis  v.  Davis   (163  S.  W.  468,  157 

Ky.  530),  74. 
Davis  v.   Freeman   (10   Mich.   191), 

145. 
Davis  v.  Godart   (Minn.,  154  N.  W. 

1091),  216. 
Davis  v.  Strobridge  (44  Mich.  159), 

145. 
Davison  v.  Hawkeye  Ins.  Co.  (71  la. 

532,   60  Am.   Rep.   818,   32   N.  W. 

514),   23. 
Davison  v.   Peter    (119   Mich.   610). 
Day  v.  Scott  (153  111.  293,  38  N.  E. 

562),    208. 
Day  v.   Davey   (132  Mich.  173),  79. 
Dayton  v.  Stone  (111  Mich.  196),  96. 
Deitman  v.  Arnold    (71  Mich.  656), 

77. 
Deacons  v.  Doyle   (75  Va.  258),  78. 
Decker   v.    Pierce    (191    Mich.    71), 

145. 
Defeenbaugh     v.     Foster     (40     Ind. 

382),  172. 
DeLaney  v.  Hawkins  (49  N.  Y.  Supp. 

469,  23  App.  Div.  8,  57  N.  E.  1108, 

163  N.  Y.  587),  74. 
Delano   v.   Taylor    (Ky.,   113    S.   W. 

SS8),    186. 
Delevan  v.  Wright  (110  Mich.  143), 

20. 


[References  are  to  Sections] 

Demoss  v.  Robinson   (46  Mich.  62), 

10,  20. 
Denny    v.    Hancock    (L.    R.    6    Ch. 

App.  1),  110. 
Denton    v.    Stewart    (1    Cox.    258), 

109. 

Desvergers  v.  Willis   (56  Ga.  515), 

78. 

Detroit,  Hillsdale  &  Ind.  R.  R.  Co. 

v.  Forbes   (30  Mich.  165),  10. 
Detroit  Land  Contract  Co.  v.  Green 

(202  Mich.  464),  60. 
Detroit   v.    Martin    (34    Mich.    170), 

64. 
Develan  v.  Duncan   (49  N.  Y.  485), 

63. 
Dewitt  v.  Tyler  (49  Mich.  614),  198. 
D.  H.  R.  R.  Co.  v.  Forbes  (30  Mich. 

175),    12. 
Dickinson  v.  Wright  (56  Mich.  46), 

10. 
Dikeman   v.   Arnold   (71   Mich.   656, 

40  N.  W.),  219. 
Dilly  v.  Langwell    (163   Mich.  439), 

200. 
Dinnan    v.    Bloomfield    Hills    Land 

Co.  (214  Mich  53  and  cases  cited), 

217. 
Disbrow  v.  Jones  Har.  (Mich.  102), 

216. 
Dickerson    v.    Dickerson    (Mo.,    110 

S.  W.  760),  64. 
Doane  v.  Feathers  Est.    (119  Mich. 

691),   19. 
Doland  v.  Smith  (147  Mich.  276),  79. 
Dolee  v.  Ireland  (9  Mich.  157),  160. 
Donahue    v.    Patter    &    G.    Co.    (63 

Nebr.   128),   259. 
Donnelly  v.  Lyons  (173  Mich.  515), 

86,   171,   ISO. 
Donovan  v.  Word   (100   Mich.  605), 

71. 
Dougherty  v.  Randall  (3  Mich.  581), 

43. 


596 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 

Dowling  v.  Salliotte   (83  Mich.  131, 

135-136),   43. 
Downey  v.  Seib   (185  N.  Y.  427,  78 

N.    E.    66,    113    A.    S.    R.    926,    8 

L.  R.  A.  (N.  S.)  49),  78. 
Draft    v.    Herselsweet     (194    Mich. 

604),  207. 
Dragoo   v.   Dragoo    (50   Mich.   573), 

20,  98. 
Dreger   v.   Budde    (113   N.  W.   950, 

133  Wis.  516),  74. 
Driver  v.  Martin   (60  S.  W.  651,  68 

Ark.  551),  74. 
Driver   v.   White    (Tenn.,   5    S.   W. 

994),  206. 
Drappers    v.     Marshall     (26     Mich. 

560),   18. 
Dubois  v.   Campau   (28   Mich.   304), 

72. 
Ducett  v.  Wolf  (81  Mich.  312),  10. 
Dukes  v.  Turner  (44  la.  575),  43. 
Dunks    v.    Fuller    (32    Mich.    242), 

58,  216. 
Dunner  v.  Gypsium  Co.   (153  Mich. 

622),  12. 
Dupont  v.  Starring   (42  Mich.  492), 

70. 
Dwight  v.  Cutler  (3  Mich.  573),  10, 

20,  63. 
Dyer  v.   Duffy    (39  W.   Va.   148,   19 

S.   E.   540,   24  L.   R.   A.   339),   253. 

E 

Eaghus    v.    Pittus     (109    Ark.    310, 

1598  W.   1116),   254. 
Eaton  v.  Benton  (2  Hill  576),  19. 
Eaton     v.     Trowbridge     (38     Mich. 

454),  64. 
Ebert  v.  Cullen  (165  Mich.  75),  18. 
Eberly  v.  Heaton    (124   Mich.   205), 

198. 
Economy  Power  Co.  v.  Daskam  (74 

Mich.  402-404),  59. 
Edsell  v.  Nelins  (80  Mich.  146),  64. 
Edwards     v.     Thawan     (187     Mich. 

361),  244. 


to  Sections] 
Eggleston     v.    Wagner     (46     Mich. 

618),  16. 
Eggers  v.  Anderson    (63  N.  Y.  Eq. 

264,  49  Atl.  578),  214. 
Eichelberger  v.   Barnitz    (1   Yeates 

(Pa.)   307),  225. 
Elliott  v.  Walker   (145  Ky.   71,  140 

S.  W.  51),  186. 
Ellison     v.     Branstrattor     (45     Ind. 

App.  307,   88  N.   E.   963,   89  N.  E. 

513),  186. 
Elterman  v.  Hyman  (192  N.  Y.  113, 

127   Am.    St.   Rep.    862,    15  Anno. 

Cases    819),   186. 
Elder    v.    McClasky    (17    C.    C.    A. 

251,  70  Fed.  529),  70. 
Engel  v.  Engel  (209  Mich.  276),  20. 
Ernest  v.   Ernest    (178   Mich.   100), 

86. 
Erslinger    v.    Pascoe     (129    la.    86, 

105   N.  W.   362,   3   L.   R.   A.   new 

series  147),  249. 
Ervingdale  v.  Riggs    (148  111.   403), 

20. 
Evans   v.   Taylor   (177   Pa.   St.   286, 

35  Atl.   635,  69  L.  R.  A.  790),  78. 
Everett  v.  Mansfield  (158  Fed.  374, 

8  Anno.  Cs.  956),  186. 

F 

Faraday   Coke,   etc.    Co.    v.    Owens 

26    Ky.   Law  Rep.   243,   80   S.  W. 

771),    186. 
Farday  Coal  Co.  v.  Owens  (26  Ky. 

Law    Rep.    243,    160    S.    W.    725), 

251. 
Farnum  v.  Brooks  (9  Pick  (Mass.) 

212),  43. 
Farr  v.  Childs   (204  Mich.  19),  226. 
Farr  v.   Childs    (204   Mich.   20),  79. 
Farrell    v.    Taylor  (  12    Mich.    113), 

164. 
Farwell  v.  Johnston  (34  Mich.  342), 

58. 
Faxton   v.    Faxton    (28    Mich.    159), 

19. 


TABLE  OF  CASES 


597 


[References  are  to  Sections] 


Felch    v.   Hooper    (119    Mass.    52), 

116. 
Feldman  v.  Zimmerman  (208  Mich. 

240),  162. 
Felkner    v.    Tighe    (39    Ark.    357), 

186. 
Felt   v.    Felt    (118    N.   W.    953,    155 

Mich.  237),  107. 
Fenton     v.     Emblers     (3     Burrow 

1278),   19. 
Ferguson   v.  Wilson    (L.   R.   2   Ch. 

77),   109. 
Fero  v.  Land  &  Sons  Lbr.  Co.  (101 

Mich.   310),   198. 
Ferres    v.    Snow    (124    Mich.    559), 

115. 
First  Nat'l  Bank  v.  Dana  (79  N.  Y. 

112),  24. 
Fifth    Nat'l    Bank    v.    Pierce     (117 

Mich.  376),  198. 
Fisher  v.  Boody    (1  Curt.  206  Fed. 

C.  S.  4,  814),  231. 
Fitscher  v.  Olsen   (115  Mich.  320), 

71. 
Fitzhugh     v.     Maxwell     (34     Mich. 

138),  43,  173,  178,  186. 
Fitzgerald  v.  Boyle  (Utah,  193  Pac. 

1109),  248. 
Flading  v.  Rose   (58  Md.  13),  43. 
Flattery  v.  James  Cunningham  Son 

&  Co.   (125  Mich.  467),  243. 
Fleming  v.  Burnham   (100  N.  Y.   1, 

10),  78. 
Fleming    v.    James    S.    Holden    Co. 

(200  Mich.  519),  244. 
Fleming  v.  Fleming    (202   615),   20. 
Flamer  v.   Cullen    (194   Mich.   585), 

121. 
Foley    v.    Dwyer    (112    Mich.    591), 

173,  178,  186. 
.   Folley  v.  Thomas   (93  N.  E.  181,  46 

Ind.  App.  559),  74. 
Folkner  v.  Beers  (2  Doug.  P.  117), 

160. 
Foltz  v.  Wert  (103  Ind.  404,  2  N.  E. 
950),  43. 


Ford  v.  Wright  (114  Mich.  122),  77. 
Forney  v.   Birmingham    (1?::   Ala   1, 

55  So.  618),  257. 
Foreman  v.  Wolf  (29  Atl.  837,  Md.), 

70. 
Fountain  v.  Semi  Tropic  Land  Co. 

(99  Cal.  677,  34  Pac.  497),  231. 
Fouts    v.    Foudray    (31    Okla.    221, 

Anno.   Cases   1913    E.    301,   38   L. 

R.   A.   (N.  S.)    251),  23. 
Fowler  v.  Breedan    (98  Mich.  133), 

160. 
Fowler    v.    Dr.    Lance    (146    Mich. 

630),  20. 
Fox  v.  Pierce    (50  Mich.  500),  226. 
Fowler   v.    Isbell    (202    Mich.    572), 

20,  112,  126. 
Francis  v.  Barry  (69  Mich.  311),  18. 
Fray  v.  Austin  Machinery  Co.   (140 

Mich.  452),  172. 
Frazer   v.    Hovey    (195   Mich.    160), 

24,   112,  150. 
Freedman  et  al.  v.  Oppenheim  (187 

N.    Y.    101,    79   N.    E.    841,   116   A. 

S.  R.  595),  78. 
Fred    Macey    Co.    v.    Macey     (143 

Mich.  138),  214. 
French  v.  Bent  (43  N.  H.  448),  219. 
Frost  v.  Leatherman  (55  Mich.  33), 

64. 
Friar    v.    Smith     (120    Mich.    411), 

243. 
Friedenwald    v.    Welch    (174    Mich. 

399),  242. 
Friendly    v.    Elwert    (57    Ore.    599, 
112    Pac.    1085,    Ann.    Cases    1913 

A-357),  24S. 
Friend  v.  Smith  (191  Mich.  99),  95, 

112. 
Frishkorn  v.  Fitzgerald   (215  Mich. 

106),  112. 
Fuller    v.    Swensberg     (106    Mich. 
305,    64    N.    W.    463,    58    Am.    St. 
Rep.   481),   72. 


598 


THE  LAW   OF   LAND   CONTRACTS 


[References  are  to  Sections] 

Fullerton  v.  McGurdy  (4  Kans.  132),  Goddard    v.    Jeffries    (51   L.   J.    Ch. 

109.  57)'  n0- 

G  Golden  v.  Carnett  (154  Ky.  438,  157 

„     ,,             o     a    raa  T^io    A09-,     iar  S.  W.  1076),  250. 

Gasluns  v    Byrd   (66  Fla.  432  ,  105.  ^              ^ 

Garr  v.  Alden  (139  Mich.  440),  214,  ^    ^ 

295 

t,    ti.       i    mot     i\/r,v.v,  Goldman   v.   Rosenberg    (116   N.   Y. 
Garvey    v.    Parkhurst    (127     Mich. 

'         1Q  78,  15  Am.  St.  Rep.  410,  22  N.  E. 

}'  397)     '3 

Garrise    v.    Kars    (201    Mich.    643),  6*"'   **' 

„"  Good  v.  Jarrard   (93  S.  C.  43,  L.  R. 

244. 

Gates  v.  Paul   (117  Wis.  170,  94  N.  A'  *™>>  23' 

_    __.     ,n    iC  Goodrich    v.    Smith,    78    Mich.    1), 
W.  55),  10,  15. 

Gates    on    Real    Prop.     (Sec.    598,  ■ 

Fourth  L.  R.  A.  N.  S.  957,  Sees.  Goodman  v.  Wobig  (216  Mich.  51), 

614-A,   467,   657,   606,   613),   144.  112- 

»ir  t      u~   moo  a/t^Ti    4<?<n  Goodwin  v.   Springer    (233   111.   229, 

Gates  v.  McLanlin  (199  Mich.  438),  ^  ^  ^  ^  ^ 

Gates  v.  Gamble  (53  Mich.  181),  96.  Goodspeed  v.  Dean   (12  Mich.  352), 


150. 
Gordan  v.  McGinnis   (92  Mich.  97), 
198. 


Gault  v.   Starmont    (51   Mich.   636), 

18,   99. 
Ganthier  v.  West  (45  Minn.  192),  63.  Qf   ^ 

Geiges  v.  Greiners   (68  Mich.  153),  ^    4Q3)>   ^ 

1  ^1 

,_       HOO  __.  ,    „„.        Gould  v.  Murch  (70  Me.  288,  35  Am. 
Gengrass  v.  Mather  (12S  Mich.  572),  r^   ^^  ^ 

U-  /OAO  __.  .     0/M        Graham  v.  Moffett  (119  Mich.  303), 

George  v.  Schuman  (202  Mich.  241, 

242.  248,  258,  259,  168  N.  W.  486),  ^ 

1  08 

„„,   „    -    ooo    1,7  S.   E.    558,   37   Am.    St.   Rep.   894, 

Gerstell  v.  Shirk  (210  Fed.  223,  127  ^  ^  r   ^  ^  ^ 

C.  C.  A.  41),  186.  nd   Trunk  y    FuUer    (2Q5   M.ch 

Gettleson  v.  Lewis  (206  Mich.  113),  ?g 

244 

,,.        /4ne  ,»•  v.  «^        Grand    Rapids    R.    Co.    v.    Stevens 
Gibbs  v.  Minthlme  (175  Mich.  626),  ^  ^    ^  ^  m 

106'  114'    TT   •         ,a*    u.  i,     9«<m        Graves  v.  Stander   (Okla.,  161  Pac. 
Gilbert    v.    Haire     (43    Mich.    283), 

?14  ° 

m,„.  mm     Mir-h        Gray  v.  Mill  (105  Mich.  189),  114. 

Gilbert     v.     Williams     (157     Mich.  ' 

Green   v.    Reeder    (199    Mich.    594), 

121. 
Gregory  v.  Knight  (50  Mich.  61),  78. 


226),  198. 
Gildea   v.   Warren    (173    Mich.    28), 

76 
Gitson  v.  Yale  Land  Co.  (212  Mich.      Greeley  v.  Stellison  (27  Mich.  153), 


12. 

reei 
7421),  24.  505),  242. 


294)     209 
Goddard  v.  Foster  (17  Wall  (U.  S.)       Greenberg  v.  Schwinski  (211  Mich. 


TABLE  OF  CASES 


599 


[References  are 

Green   v.   Mich.   C.   R.   R.   Co.    (168 

Mich.    109),    233. 
Green  v.  Railroad   (158  Mich.  436), 

112. 
Greenaway     v.     Adams     (12     Ves. 

395,  400),  109. 
Green  v.  Begole  (70  Mich.  602),  96. 
Green    vs.    Bay    City    R.    Co.    (152 

Mich.   436),   109. 
Gregg  v.  Hamilton   (12  Kans.  333), 

109. 
Green  Bay  City  v.  Port  Huron  R. 

Co.    (156  Mich.  436),  109,  114. 
Green    v.    Grant    (134    Mich.    466), 

145. 
Greenop    v.    Wilcox    &    Hyatt    (85 

Mich.  49),  178. 
Greiling  v.  Watermalen    (128  Wis. 

440,  107  N.  W.  339),  211. 
Griffith   v.    Spratley    (1    Cox   C.   C. 

383,   29  Eng.   Rep.   1213),   105. 
Grueler    v.    McRoberts     (48    Mich. 

316),  160. 
Grunnett  v.  Gingras  (77  Mich.  360), 

116. 
Grunow  v.   Salter   (US  Mich.   148), 

14. 
Grover  v.  Buck   (34  Mich.  519),  14. 
Groopers    v.    Marshall     (206    Mich. 

560),  IS. 
Guild  v.  Atkinson  R.   R.    (57  Kans. 

70,  51  Ann..  33  L.  R.  A.  77),  109. 
Gunther   (Geo.)   Jr.  Brewing  Co.  v. 

Brywczyriski     (107    Md.    696,    69 

Atl.    514).    106. 
Gupton  v.  Gupton   (47  Mo.  37),  109. 
Gustin  v.  Davis   (129  Ind.  472),  10. 
Guyer  v.  Warren  (175  111.  328),  248. 

H 

Hack  v.  Norris  (46  Mich.  587),  218. 
Haener    v.    McKenzie     (18S    Mich. 

27),   213. 
Haff  v.  Jenney  (54  Mich.  511),  231. 


to  Sections] 

Hager  v.  Rey  (213  Mich.  664),  121. 
Hall  v.  Bell    (143  Wis.  296,  177  N. 

W.  967),  215. 
Halcomb   v.   Noble    (69   Mich.  398), 

213. 
Haldane   v.    Sweet    (55    Mich.    196), 

215. 
Hallett  v.   Middleton    (1   Rus.   243), 

109. 
Hamberger  v.   Berman    (203    Mich. 

78),   216. 
Hamberger  v.  Thomas  (Texas  Civil 

Appeals,  118  S.  E.  770),  250. 
Hamer  v.   Martin   (205  Mich.  359), 

207,   212. 
Hammond     v.     Hannin     (21     Mich. 

374),  219. 
Hammond    v.    Wallace     (85    Calif. 

522,  24  Pac.  837),  216. 
Hanaw  v.  Bailey  (83  Mich.  27),  162. 
Hanley  v.  Waterson  (39  W.  Va.  214, 

19  S.  E.  536),  246. 
Hannan  v.  Prentis  (124  Mich.  417), 

243. 
Hardin  v.  Boyd    (113  U.  S.  765,  28 

L.  Ed.  1144),  43. 
Harrett  v.  Kinney    (44  Mich.   457), 

151. 
Harrington    v.    Brewer    (56    Mich. 

301),   198. 
Harrington  v.  Paterson    (124   Calif. 

542,  57  Pac.  476),  216. 
Harris    v.    Brown    (172    Mich.    164- 

172),   19,  43. 
Harrison   v.    Des    Moines    (91   Iowa 

114),  78. 
Harrison    v.     Eassom     (208     Mich. 

6S5),  20,  122. 
Hauber  v.   Liebold    (76   Nebr.   706, 

107  Adms.  78),  43. 
Haughwont    v.    Murphy    (22    N.    J. 

Ed.    531,   21    N.   J.   Ed.   US),  109, 

1S6. 
Haviland  v.  Chase  (116  Mich.  2L6), 

152. 


600 


THE  LAW   OF   LAND   CONTRACTS 


[References  are  to  Sections] 


Haynes  v.   Stevens   (11   N.  H.  28), 

78. 
Haynes  v.  Young  (36  Me.  557),  78. 
Hazelton  v.  De  Luc  (10  App.  Cases 

D.  C.  379),  250. 
Head  v.  Fordyce   (17  Cal.  149),  64. 
Healy  v.  Worth  (35  Mich.  166),  54. 
Heaton  v.  Edwards  (90  Mich.  500), 

244. 
Hedderly  v.  Johnson  (42  Minn.  443, 

44  N.  W.   1056),  78. 
Heethuis  v.   Kerr   (194   Mich.   689), 

86. 
Heith  v.  Smith  (175  Mich.  328),  112. 
Harrison    v.    Spencer    (110    Mich. 

215),  76. 
Hartz  v.  Railway  (153  Mich.  33),  94. 
Heller    v.    Cohen    (154    N.    Y.    299, 

306),  78. 
Hemmer  v.   U.   S.    (204   Fed.   898), 

214. 
Hendricks     v.     Rasson     (42     Mich. 

104),  152. 
Henry   v.   Gregory    (29    Mich.    68), 

152. 
Henry  v.  Henry  (80  N.  W.  800,  122 

Mich.  6),  74. 

Herman    v.    Somers    (158    Pa.    St. 

424,    27    Atl.    1050,    38    A.    S.    R. 

851),  78. 

Herrick  v.  Moore  (19  Me.  313),  78. 

Hibbard  v.  Hatch  Storage  Co.  (174 

Mass.  297),  15. 

Hickey  v.  Dale   (66  N.  H.  336),  15. 

Hickman    v.     Cheney     (152     Mich. 

217,     155    Mich.     217     (255),    118 

N.  W.  993),  10,  15,  177,  183. 

Hicks  v.  Turck  (72  Mich.  311),  97, 

104,  113. 
Hicks  v.  Smith  (183  Mich.  137),  77. 
Hickson  v.  Aylward  (3  Moll  15),  43. 

Higgins   v.   Butler    (78    Me.   520,   7 
Atl.   276),  105. 


Higney   v.   Swan    (111    Mich.   161), 

144. 
Hildebrand  v.  Nippeling   (40  Mich. 

646),  10. 
Hilberg    v.    Greer    (172    Mich.    505, 

138   N.   Y.   201,   249),   18. 
Hiles  v.  Fisher  (144  N.  Y.  306),  43. 
Hill  v.  Carter  (111  Mich.  158),  177. 
Hillier    v.    Carpenter     (216     Mich. 

594),  212. 
Hitchcock    v.    Moiner     (111    Mich. 

80),  86. 
Hodson   v.   Van   Fassen    (26   Mich. 

68),  152. 
Hogle  v.  Mayering  (161  Mich.  472), 

243. 
Hogsett   v.   Ellis    (17   Mich.   364-5), 

10,   20. 
Hokonson    v.    Oatman    (165    Mich. 

512),  212. 
Holland     v.     Holland     (195     Mich. 

513),  18. 
Holland  v.  Hoyt  (14  Mich.  242),  10. 
Hollander  v.  Central  Metal  &  Sup- 
ply Co.   (71  Atl.  442,   23  L.  R.  A. 
(N.  S.)    1135),  116. 
Hollingshead  v.   Morris   (172  Mich. 

126),  106,  113,  114. 
Holmes  Realty   Co.   v.   Silcax    (195 

Mich.  59),  242. 
Holmes  v.   Soule    (180   Mich.   527), 

86. 
Holtzman  v.  Douglas  (5  App.  D.  C. 

397,  168  U.  S.  278),  74. 
Hommel    v.     Devinney     (39     Mich. 

523),  58,  116. 
Hoodley    v.    Sav.    Bank    (Conn.,    44 

L.  R.  A.  321),  244. 
Horgan   v.   Russell    (24   N.   D.   490, 
140  N.  W.  99,  43  L.  R.  A.   (N.  S.) 
1150),  244,  256,  257. 
Horton  v.  Hubbard  (83  Mich.  123), 
115. 


TABLE  OF  CASES 


601 


[References  are 
Horton    v.    Helmholtz     (149    Mich. 

227),  79. 
House   v.   Jackson    (24    Ore.   89,   32 

Pac.  1027),  251. 
Howard  v.  Linnhaven  Orchard  Co. 

(228  Fed.  523),  186. 
Howe  v.  Benedict  (142  N.  W.  768), 

107. 
Howe  v.  Coats  et  al.  (97  Minn.  385, 

107  N.  W.  397,  114  A.  S.   R.  723, 

4  L.  R.  A.    (N.   S.)   1170),  78. 
Howell    v.    Northampton    (211    Pa. 

St.  284),  78. 
Hoyes  v.  Livingston  (34  Mich.  388), 

14. 
Hubbard  v.  Norton  (10  Conn.  422), 

78. 
Hubbardson  Lbr.  Co.  v.  Bates   (31 

Mich.  158),  216. 
Hubbel   v.    Ohler    (213   Mich.    664), 

185-A,   121. 
Hughes  v.   Pealer    (80  Mich.   540), 

198. 
Humraill  v.  Smale  (186  Mich.  199), 

86. 
Hunkabee  v.  Shepard  (95  Ala.  342), 

251. 
Hunt  v.   Stevens    (174   Mich.   501), 

86. 
Hunter  v.  Blasser  (194  Mich.  157), 

244. 
Hunter  Tract  Imp.  Co.  v.  Stone  (58 

Wn.  661,  109  Pac.  112),  172. 

Huron   Land   Co.   v.   Robarge    (128 

Mich.  686),  18. 
Hutchinson     v.     Westbrook      (191 

Mich.    484),   204,   213. 

Huych  v.  Andrews   (113  N.  Y.  81), 

78. 
Hynes  v.  Estey  (116  N.  Y.  501),  78. 
Hyde   v.    McFaddin    (140   Fed.    433, 

72   C.   C.   A.   655),   74. 


to  Sections] 

I 
Ickler  v.   Muellen    (196  Mich.   616), 

95,  114,  122. 
Ide  v.  Leister  (10  Mont.  5,  24  Am. 

St.    Rep.    17,    24    Pac.    695),    248, 

259. 
Ihrke    v.    Continental    Life    Ins.    & 

Inv.    Co.,    91    Wn.    342,    L.    R.    A. 

1916  F.  430,  157  Pac.  866),  186. 
111.    Steel    Co.    v.    Bilot    (85    N.   W. 

402,    109    Wis.    418,    83    Am.    St. 

Rep.   905),   74. 
Irving  v.  Campbell   (121  N.  Y.  353, 

24  N.  E.  821,  8  L.  R.  A.  620),  78. 

J 

Jackson   v.   Evans    (44   Mich.   510), 

10. 
Jackson  v.  Lever  (3  Bro.  C.  C.  605), 

23. 
Jackson  v.  Groat   (N.  Y.   1847),    (7 

Cow.    285),    186. 
Jackson  v.  Armstrong  (50  Mich.  65, 

14  N.  W.  702),  210,  213. 
Jacobs  v.  Miller  (50  Mich.  119),  43. 

Jacobson   v.   Le   Grange's  Ex'rs    (3 

John  199),  19. 
James  v.  Jenkins  (34  Md.  1),  78. 
Jandorf  v.  Patterson  (90  Mich.  40), 

212,  218,  231. 
Jaquith   v.    Hudson    (5    Mich.    126), 

145. 
Jarvis  v.  Smith  (Hoff.  Ch.  470),  21, 

62. 
Jaspa  v.  Martin  (161  Mich.  336),  73. 
Jeffries  v.  Johnson  (175  S.  W.  (Mo.) 

581),  74. 
Jeffrey    v.    Hursh    (42    Mich.    563), 

151. 
Jenkinson  v.  Aud.  Gen.   (104  Mich. 

34),  82. 
Jennings     v.     Sherwood     (8     Conn. 

127),   24. 


gQ2  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Sections] 

Jilson  v.  Gilbert   (26  Wis.  637),  19.  Kellow  v.  Jary  (141  Pa.  St.  144,  22 

John  v.  McNeal  (167  Mich.  148),  97,  Atl.   522),  246,   251. 

144.  Kelly  v.  Kelly  (54  Mich.  30),  10. 

John    v.    McNeil    (167    Mich.    151),  Kelsey  v.  Crawther  (162  U.  S.  404), 

144,  171.  255. 

Johnson  v.  Moore  (28  Mich.  3),  12.  Kelsey  v.  McDonald  (76  Mich.  188), 

Johnson  v.  Bowden   (37   Tex.   621),  20- 

109.  Kendall  v.   Chase    (203   Mich.   660), 

Johnson  v.  Eklund   (72  Minn.  195),  12L 

172,  186.  Kenney   v.   Wexhan    (6    Madd.   355, 

Johnson  v.  Wilson   (11   Mich.  114),  357)>   23- 

19g.  Kennedy   v.    Ford    (183   Mich.    48), 


Johnson    v.    Trippe    (33    Fed.    530), 
258. 


151. 
Kerwin  Machine  Co.  v.  Baker  (199 


Jones    v.    Berkey    (181    Mich.    472),  Mich.  122),  24,  112. 

m  Killeen  v.  Funk   (83  Neb.  622),  78. 

Jones  v.  Bowling   (117   Mich.   288),  Kimberlin    v.    Templeton    (55    Ind. 

171,  179.  App.   155,  102  N.  E.   160),  23. 
Jones   v.   Berkey    (181    Mich.   476),  Kicks  v.  Smith   (183  Mich.  37),  77. 

172,  186.  King  v.  Carpenter  (159  Mich.  337), 
Jordan  v.  Eve    (31  Gratt   (Va.)    1),  43,  79. 

78.  Kingsbury  v.  Burnside  (58  111.  310), 

Joy   v.    Stevenson    (128   Pac.    751),  io. 

172.  Kinsey   v.    Barth    (192    Mich.    219), 

Junction  R.  Co.  v.  Pa.  Co.  (222  Pa.  244. 

573,  72  Atl.  271),  186.  Kinyon  v.   Cunningham    (146  Mich. 

Justice  v.  Button  et  al.  (89  Neb.  367,  430),  200. 

131  N.  W.  736,  38  L.  R.  A.  (No.)  Kimball    v.    Harrington    (91    Mich. 

1),  78.  281),  198. 

K  Kimball  v.  Ronney  (122  Mich.  160), 

Kalkes   v.    Storms    (93   Mich.    480),  243. 

152.  Kirby-Sorge-Felske      Co.     v.     Doty 

Kares    v.    Covell    (180    Mass.    206),  (190   Mich.  533),  243. 

78.  Kirkpatrick    v.     Miller     (50     Miss. 

Karmichael      v.      Karmichael      (72  521),  155. 

Mich.   76),   20.  Kittermaster  Exr.,  etc.  v.  Brossard 

Kast  v.  Bender  (25  Mich.  515),  209.  (105  Mich.  220),  145. 

Kansas  Land  Co.  v.  Hill  (Tenn.,  11  Klett  v.  Klett   (175  Mich.  224),  20. 

S.  W.  797),  218.  Knapp  v.  Gambsy    (47   Mich.  377), 

Kellogg  v.   Ingersoll    (2  Mass.   96),  164. 

78.  Knight    v.    Cooley    (34    Iowa    218), 

Kellogg  v.  Malin   (50  Mo.  496),  78.  10,  15. 


TABLE  OF  CASES 


603 


[References  are 
Knite  v.  Lage  (152  Mich.  638,  639). 
Koch   v.    Strenter    (232   111.   594,   83 

N.    E.    1072),    106. 
Krankfeld  v.  Missal  (87  Conn.  491), 

209. 
Krell  v.  Cohen   (214  Mich.  590),  59. 
Kroll  v.  Diamond     Match  Co.   (113 

Mich.  196),  18. 
Krenze  v.  Solomon  (126  Mich.  290), 

64. 
Krueger  v.  Market   (145  N.  W.  30, 

124  Minn.  393),  74. 
Kreutzer  v.   Lynch    (122   Wis.   474, 

100  N.  W.  887),  252. 
Kulesza  v.  Wychomski    (213   Mich. 

189),  207. 
Kutz  v.  McKune   (22  Wis.  628),  78. 


Lake    Erie    Land    Co.    v.    Chylinski 

(197   Mich.   216),  77,   98,   106,  114. 
LaBlanch     v.     Perron     (209     Mich. 

239),   198,   203. 
Lachelt    v.    Mclnerney    (125    Mich. 

413),  86. 
LaFountain  v.  Dee  (110  Mich.  347), 

74. 
Lamb  v.  Hinman  (46  Mich.  116),  20. 
Lamb   v.   Danforth    (59   Mich.  322), 

78. 
Lambert  v.  Weber  (S3  Mich.  395), 

18,  58,  114,  115,  116. 
Lamkins  Loan  &  Investment  Co.  v. 

Adams   (132  Mich.  350),  144. 

Langworth  v.  Mitchell  (26  Ohio  St. 

334),   253. 
Lapp  v.  Lapp    (43   Mich.   287),   199. 
Larmon  v.  Jordan  (56  111.  204),  246, 

253. 
Laser  v.  Fowler  (114  Ark.  874),  208. 
Lasley     v.     Kniskern     (152     Mich. 

244),  74. 


to  Sections] 
Laubengayer  v.   Rhode    (167   Mich. 

605),  109. 
Lavin  v.  Lynch  (203  Mich.  145),  62. 

Law  v.  McKechnie  (202  Mich.  284), 

122. 
Leavitt   v.    Stern    (159    111.    526,    42 

N.  E.  869),  62. 
Lecus  v.  Turns  (180  Mich.  117),  86. 
Lee  v.   Butler   (167  Mass.   426),  15. 
Lee  v.  Timkin  (10  Ap.  Div.  213,  41 

N.   Y.   Supp.   979),   215. 
LeFevre  v.  Chamberlain  (228   Mass. 

294,   117   N.  E.  327),   214. 
Legg  v.  Brower  (212  Mich.  403),  82. 
Leigen  v.   Rosier    (200   Mich.   328), 

114. 
Lenmon  v.  Jones   (222  U.  S.  51,  56 

L.  Ed.  89),  172. 
Lergen  v.  Rayser   (200  Mich.  328), 

43. 
Lesser   v.    Smith    (212    Mich.    559), 

204. 
Lewis    v.    Jacobs    (153    Mich.    665), 

205. 
Lewis    v.    Hawkins    (90    U.    S.    (23 

Wall)  119,  23  L.  Ed.  113),  43. 
Levendge  v.  Huritz  (111  Mich.  618), 

104. 
Levy  v.  Roth  (39  N.  Y.  Supp.  1057, 

17  Misc.  Rys.  N.  Y.  40),  251. 
Lieberman    v.    Sloman    (118    Mich. 

355),   226. 
Lightfoot   v.   Head    (60   So.   752,   64 

Fla.  364),  74. 
Lake  Shore  etc.  Ry.  Co.  v.  Serling 

(189  Mich.  366),  76. 
Lion  v.  Henry  Bradford  &  Co.  (209 

Mich.  172),  213,  219,  236. 
Lister  v.  Sokwinski  (206  Mich.  121), 

243. 
Little  v.  Thurston  (55  Me.  86),  109. 


604 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 
Little  v.  Needham   (39  Mich.  147), 

10. 
Little  v.  Dawson  (4  Dall.  Ill),  19. 
Litz    v.    Goosling    (93    Ky.    185,    19 

S.  E.  527,  21  L.  R.  A.  127),  259. 
Lockerby  v.  Anion  et  al.    (64  Wn. 

24),   172. 
Loetz    v.   Tierney    (153    Mich.    279, 

281,  282),  141,  151. 
Logan  v.  Anderson   (2  Doug.   100), 

14. 
Lombton    v.    Investment    Co.     (132 

Mich.  353),  151. 
Longcar  v.  Turner  (191  Mich.  240), 

86. 
Loomis  v.  Loomis   (178  Mich.  221), 

22. 
Loomis  v.  R.  R.  Co.   (17  Fed.  301), 

62. 
Lorman  v.  Benson  (8  Mich.  18),  94. 
Latta  v.   Hax    (219  Pa.   St.   483,   68 

Atl.  1016),  106. 
Louder   v.    Burch    (47    Mich.    Ill), 

145. 
Louisville  Ry.  Co.  v.  Ohio  Imp.  Co. 

(57  Fed.    42)    214. 
Louisville   Ry.   Co.   v.   Kellner-Deh- 

ler  Realty  Co.   (148  Ky.  765,  147 

S.  W.   424),  110. 
Lovejoy  v.  Potter  (60  Mich.  95),  116. 
Loverage  v.  Shurtz  (111  Mich.  618), 

97. 
Loveridge  v.  Coles  (72  Mich.  57,  74 

N.  W.  1109),  218. 
Lowe  v.  Maynard    (Ky.,  115  S.  W. 

214),    186. 
Lowrie  v.  Gourlay  (112  Mich.  641), 

171. 
Lozon  v.   McKay    (203    Mich.    364), 

97,  122,  171,  174,  183,  185-A. 
Lumber  Co.  v.  Ion  (101  Mich.  577), 

24. 


to  Sections] 
Lumbering  Co.  v.  Powell  (120  Mich. 

58),  54. 
Lyle  v.  Munson  (213  Mich.  250),  18, 

121,   143. 
Lyons    v.   Fairmont   Real   Est.    Co. 

(77    S.    E.    525,    77    S.    E.    525,   71 

W.  Va.  754),  74. 

Lyman  v.  Gedney  (114  111.  386),  18. 

Lyman  v.   Robinson    (96   Mass.,   14 
Allen  242),  15. 

M 

Macey  (Fred)  &  Co.  v.  Macey  (143 

Mich.  138),  214,  215. 
Macreth     v.     Symmons     (15     Ves. 

329),  62. 
Maddock  v.  Russel   (109  Calif.  417, 

42  Pac.  139),  219. 
Malliott  v.  Vogel    (125   Mich.   291), 

79. 
Mammaux   v.    Cape    May    Co.    (214 

Fed.  757),  209. 
Manning    v.    Drake    (1    Mich.    34), 

226. 
Manley  v.  Johnson   (85  Vt.  262,  81 

Atl.  919),  209. 
Mansfield  v.  Sherman   (81  Me.  365, 

17  Atl.  300),  110. 
Manning    v.    British    Ins.    Co.    (123 

Mo.  App.  456,  99  S.  W.  1095),  23. 
Martin  v.   Morgan   (87  Cal.  203,  25 

Pac.   350,   22   Am.    St.  Rep.   240), 

255. 
Martin  v.  Ash  (20  Mich.  166),  216. 
Margo  Coal  Co.  v.  Holderman  (Mo. 

163  S.  W.  828),   216. 
Marshall    v.    Lewis    (4    Litt    (Ky.) 

140),  225. 
Marshall  v.  New  Rochelle  Co.  (162 

N.  Y.  599,  57  N.  E.  1117),  216. 
Martin  v.  Smith  (94  Ore.  132),  172. 
Martin  v.  Wright  Admrs.  (13  Wend. 

460),  19. 
Martin  v.  Lloyd    (94  Cal.  195),  18. 


TABLE  OF  CASES 


605 


[References  are  to  Sections] 


Marks   v.   Tichenor    (85   Ky.   536,   4 

S.  W.  225),  23. 
Marian   v.   Wolcott    (68    N.    J.    Eq. 

20),  23. 
Marsh    v.    Bristol     (63    Mich.    378, 

3S6,   390),   144. 
Marsh  v.  Breen  Iron  Co.  (181  Mich. 

222),  71. 
Marvin    v.    Hartz    (130    Mich.    26), 

172. 
Marussa  v.  Timerowski   (204  Mich. 

271),    24,    120. 
Maryland    v.    B.    &    O.    R.    R.    (44 

U.    S.    (3    How.)    534,    11    L.    Ed. 

714),  145. 
Mason    v.    Armitage    (13    Ves.    25), 

110. 
Mather  v.  Barnes    (C.  C,   146  Fed. 

1000),  204,  211,  213. 
Match   v.    Hunt    (28   Mich.    1),    204, 

211,  213. 
Mathews  v.  Nash   (151  la.  125,  130 

N.  W.  796),  43. 
Matterson    v.    Schoffield     (26    Wis. 

671),   10. 
Matterson    v.    Schoffield    (27    Wis. 

671),  10. 
Matta  v.   Kippola    (102   Mich.   117), 

43a. 
May   v.    Getty    (140    N.    C.    310,    53 

S.  E.  75),  254. 
Maynard  v.  Brown   (41  Mich.  298), 

18. 
Maynard  v.  Davis   (127  Mich.  571), 

77. 
Mayday  v.    Roth    (160    Mich.    190), 

144. 
Mead   v.   Hein    (28  Wis.   533,   537), 

78. 
Meidling    v.    Trefz    (48    N.    J.    Eq. 

638,  23  Atl.  824),  254. 
Meigs  v.  McFarlane  (72  Mich.  194), 

173. 
Memmer  v.  U.  S.  (204  Fed.  898),  215. 
Memmert  v.   McKeen    (112   Pa.   St. 

315),  78. 


Mendelsohn  v.  McDonald  (29  Mich. 

96),   173. 
Meritas  v.  Farley  (147  N.  Y.  Supp. 

503),  212. 
Merchants   Natl.    Bank   v.    Soesbee 

(138  la.  354),  43. 
Merlan   v.    Kazoo    Cir.    Judge    (180 

Mich.   393),   213. 
Merchants  Bank  v.  Evans    (51  Mo. 

335),  64. 
Merrill    v.     Kalamazoo     (35     Mich. 

211),   94. 
Merrill   v.    Wilson    (66    Mich.   232), 

214,  231. 
Merritt    v.    Westerman    (180    Mich. 

449),  74. 
Mestler     vs.     Jeffries     (145     Mich. 

598),  216. 
Meyers   v.   Stone    (128   Va.   10,   102 

N.  W.  507,  111  Am.  St.  Rep.  180, 

5  Anno.  Cases  912),  252. 
Meyer  v.   Madreperla    (68   N.  J.   L. 

258,  53  Atl.  477,  96  A.  S.  R.  536), 

78. 
Mich.  Cir.  Ct.  Rule  No.  21,  233. 
Mich.  Cir.  Ct.  Rule  No.  22,  234. 
Mich.  Land   &   Iron   Co.   v.   Thoney 

(89,  Mich.  231),  151,  155,  147,  156. 
Michie  v.  Ellair  (54  Mich.  518),  58. 
Midland    Co.    Sav.    Bank   v.   Proaty 

(158  Mich.   156),  173. 
Midland    Co.    Sav.   Bank   v.    Proaty 

(158  Mich.  656),  173. 
Mier  v.  Hadden  (148  Mich.  488-492, 

111  N.  W.  1040,  118  Am.  St.  Rep. 

586),  54. 
Milburn     v.     Moatsch     (211     Mich. 

644),  218,  226,  231. 
Miller  v.   Vorhies    (115   Mich.   356), 

204,   212. 
Miller  v.  Andrews  (175  Mich.  351), 

209,   211. 
Millard    v.    Truax    (47    Mich.    252), 

145. 
Mills    v.    Drueke    Co.     (172    Mich. 

394),  171. 


606 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 

Milwaukee    v.     Strange     (65    Wis. 

178),  183. 
Miller  v.  Reeves  (1  Mich.  110),  12. 

Miller  v.  Bearslee   (175  Mich.  175), 

18. 
Miles    v.    Shreve    (179    Mich.    671), 

16. 
Miller  v.  Smith  (140  Mich.  524),  24. 
Miner    v.    Dickey    (140    Mich.    518, 

103  N.  W.  855),  147. 
Minero   v.   Ross   &   Masterson    (138 

S.  W.  224),  116. 
Miner    v.    Husted    (191    Mich.    41), 

145. 
Miner  v.   O'Harrow    (60  Mich.   91), 

20. 
Minor  v.  Brown  (133  N.  Y.  308),  43. 
Miscotten  v.  Helenthal    (162  Mich. 

402),  79. 
Miss.   etc.    R.   R.    Co.    v.    Cromwell 

(91  U.  S.),  105. 
Maday  v.  Roth  (160  Mich.  289),  144, 

176. 
Moffett  v.  Ore.   &  C.  R.  R.  R.   Co. 

(80  Pac.  489,  46  Ore.  443),  150. 
Moore   v.    Meade    (213    Mich.   597), 

243. 
More   v.    Carighetti    (228   111.    143), 

172. 
Moore  v.  Provost   (205  Mich.  687), 

79,  94. 
Moore  v.   Kenochee   Tp.    (75   Mich. 

332),  58. 
Moore   v.    Hinkle    (50    N.    822,    151 

Ind.  343),  74. 
Moore  v.  Williams   (115  N.  Y.  585, 

22   N.   E.   233,   12  A.   S.   R.   844,   5 

L.  R.  A.  654),  78. 
Moore   v.    Gilbert    (175    Fed.    1,    90 

C.  C.  A.  141),  46. 
Moody    v.    McComber     (158    Mich. 

610),  79. 


to  Sections] 
Moon     v.     McKinstry     (107     Mich. 

668),  212. 
Morgan  v.  Zanger  (188  Mich.  212), 

244. 
Morgan  v.  Forbes  (Mass.,  128  N.  E. 

792),  245. 
Morman  v.   Harrington    (118   Mich. 

623),  213. 
Morgan  v.  Morgan  (2  Wheat.  297), 

115. 
Morgan  v.  Patt  (101  S.  W.  717,  124 

Mo.  App.  371),   74. 

Morris    v.    Vyse    (154    Mich.    253), 
228. 

Morris  v.   Hoyt    (11   Mich.    9),  115, 

183. 
Morrison  v.  Semer  (164  Mich.  211), 

82. 
Morrison    v.     Meister     (212     Mich. 

516),   122. 
Morris    v.    Aud.    Genl.    (143    Mich. 

610),   79. 
Morris  v.  Summer  (164  Mich.  208), 

79. 
Morussa  v.  Timerowski   (204  Mich. 

271),  197,  198. 
Morse  v.  Hewett  (28  Mich.  481),  18. 
Mossie   v.   Cyrus    (61   Ore.   17,   119 

Pac.  485),  254. 
Mueller  v.  Nortman   (116  Wis.  468, 

93    N.   W.    538,    96    Am.    St.    Rep. 

997),   257;    (116   111.   468,   96   Am. 

St.  Rep.  997,  93  N.  W.  539),  186. 
Mulder   v.    Cartlett    (54    Mich.    80), 

164. 
Mull  v.  Smith   (132  Mich.  618),  16. 
Munch  v.   Schable    (37   Mich.   166), 

105. 
Munro  v.  Edward  (86  Mich.  91),  18. 
Murphy    v.     Mclntyre     (152    Mich. 

591),  179;    (116  N.  W.   197),  147, 

171. 


TABLE  OF  CASES 


607 


[References  are 

Murphy  v.  Reid    (125   Ky.   585,   101 

S.  E.   964,  128  Am.  St.  Rep.   259, 

10   L.    R.    A.   new    series    195,    27 

Ruling   Case   Law   338),   248. 
Murray  v.  Hudson   (65  Mich.   670), 

74. 
Myer  v.  Hart    (40   Mich.  523),   145. 
Myers   v.   Mayhew    (32  App.    D.   C. 

205),  74. 
Mc Arthur    v.    Newhall    (106    Mich. 

284),  200. 
McCredie     v.     Buxton     (31     Mich. 

383),  226. 
McCredie  v.   Nicholson    (213    Mich. 

551),  244. 
McCuIly  v.  Rivers  (203  Mich.  417), 

243. 
McClurken  v.  Decrick  (33  111.  349), 

96. 
McCook  v.  Crawford   (40  S.  E.  225, 

114   Ga.  337),   74. 
McCaugh    v.    Young    (37    So.    839, 

85  Miss.  277),  74. 
McDonald    v.    Andrews    (199    Mich. 

161),  171,  176. 
McDowell      v.      Mecaster      Circuit 

Judge  (178  Mich.  103),  86. 
McCrilles  v.  Sutton   (207  Mich.  58), 

121. 
McDonald  v.  Bewick  (51  Mich.  80), 

96. 
McDonald  v.  Waltz   (78  Mich.  685), 

10. 
McDermott  v.  French  (15  N.  J.  Eq. 

48),  43. 
McElvoy   v.    Buch    (35    Mich.    434), 

15. 
McEwan  v.  Ortman   (34  Mich.  324- 

325),  10,  14. 
McFerran  v.  Taylor  (3  Cranch   (U. 

S.)    270,  29  Amer.   &  Eng.  Ency. 

810),  24. 
McGovern    v.    Vennett    (146    Mich. 

558),  244. 
McGraw  v.  Muma   (164  Mich.  120), 
199. 


to  Sections] 
McGregor  v.  Putney   (75  N.  H.  113, 

71    Atl.    226,    Anno.    Cases    1912, 

1913),  172. 
McGinley  v.  Mining  Co.   (121  Mich. 

88),  82. 
McIIenry  v.  Hazard  (45  N.  Y.  570), 

214,  215. 
McKenzie  v.   Call    (176  Mich.   198), 

231. 
McKee  v.  Wilcox  (11  Mich.  358),  58. 
McLennon    v.     Prentice     (85    Wis. 

427,    434),    78. 
Mt-Murtrie    v.    Bennette    (Har.    Ch. 

(Mich.)    124),    95. 
McMillan   v.    Schneider    (147    Mich. 

263),   43. 
McVicker  v.  Filer    (31   Mich.  304), 

71. 

N 

Nally  v.  Reading   (107   Mo.  350,   17 

S.  W.   978),  21. 
Nason   v.    Chicago    etc.    R.    R.    Co. 

(149   la.   608,  128   N.  W.  854),  43. 
Nelson      v.      Breitenwischer      (194 

Mich.  30),  59,  196a. 
Nelson   v.    Smith    (161    Mich.    363), 

147. 
Newberry  v.  Chicago  Lbr.  Co.   (154 

Mich.    84),    12. 
Newman  v.  Adelsperger  (206  Mich. 

683),  244. 
Nichols     v.     Burcham     (177     Mich. 

601),   18. 
Nicholson  v.  Aranson  (48  Pac.  917, 

58  Kan.  814),  74. 
Nickerson  v.  Nickerson   (209  Mich. 

134),  20,  121. 
Niemeta    v.     Teakkle     (210     Mich. 

590),  97,  121. 
Nims  v.   Sherman    (43   Mich.   45-50- 

51),  10,  12,  151. 
Nolon  v.  Swift  (111  Mich.  56),  242. 
North  Pac.  R.  R.  Co.  v.  Concannon 

(75  Wn.  591,  135  Pac.  652),  76. 
Norris    v.    Hay    (149    Cal.    695,    87 

Pac.  380),  210. 


608 


THE   LAW   OF   LAND   CONTRACTS 


[References  are  to  Sections] 
Nowicki    v.    Kopelczak    (195    Mich.       Painter  v.  Lebanon  Land  Co.    (164 


678),   18,   95,   121. 
O 

Oakman  v.  Esper   (206  Mich.  315), 

122. 
O'Connor    v.    Huggins    (113    N.    Y. 

521),  70. 
Offcutt  v.  Offcutt  (67  Atlanta  138), 

95. 
Ogooshevitz  v.  Wangas   (203  Mich. 

666),  97,  112. 
Ogooshevitz   v.   Arnold    (197   Mich. 

203),  16,  99. 

Ogooshevitz  v.  Sampson  (211  Mich. 
180),  16,  61. 

O'Herlihy   v.    Hedges    (1    Schoales 
&  L.  123),  21. 

Olcott  v.  Hermans    (10  N.   Y.   Sup. 
Ct.  Rep.  436,  3  Hem.  436),  172. 

Old  2nd  Nat'l  Bank  v.  Savings  Bank 
(115  Mich.  533),  172. 

Old  2nd  Nat'l  Bank  v.  Savings  Bank 

(115  Mich.  553),  144. 
Old  2nd  Nat'l  Bank  of  Bay  City  v. 


Mich.  260),  213,  215. 

Palmer  v.   Marquette   Mill   Co.    (32 
Mich.  274),  15. 

Paldi  v.  Paldi   (95  Mich.  410),  151. 

Palmer  v.  Williams  (24  Mich.  331), 

10. 
Parker  v.    Copland    (4    Mich.    528), 

164. 

Parsons  v.  Det.  &  M.  Ry.  Co.   (122 
Mich.  462),  209. 

Patton    v.    Quarrier     (18    W.    Va. 

447),   78. 

Patterson   v.    Patterson    (13    Johns 
379),  19. 

Patron   Fire   Ins.   Co.   v.   Pagenkoff 
(213    Mich.   158),   204. 

Patterson     v.     Arthurs     (9     Watts 
(Pa.)   152),  78. 

Parkyn   v.    Ford    (194    Mich.    184), 
216. 

Paschal  v.  Hudson  (Tex.,  169  S.  W. 
911),  231. 

Pasterno    v.    Langwell    (163    Mich. 
439),  200. 


Alpena  County  Savings  Bank  (115      Paul    v.    Graham    (193    Mich.    447), 
Mich.  548),  177,  187.  242. 

Olin  v.  Henderson  (120  Mich.  149),       Paulus    v.    Reed    (121    la.    224,    96 


156. 


N.  W.  757),  43. 


Omaha  v.  Standard  Oil  Co.  (55  Neb.      Paund  v.  Clum  (204  Mich.  28),  210, 


337,  75  N.  W.  859),  172. 


212. 


Oman  v.  Bedford  (134  Fed.  64),  64.      Penfield    v.    Schleicher    (215    Mich. 
Ortman  v.  Plummer  (52  Mich.  76),  664)>  114- 


62. 

Osterhaub    Lbr.    Co.    v.    Rice     (93 
Mich.   353),   198. 

Otis  v.   Payne    (86   Tenn.   663),   10. 


Packard     v.     Johnson      (57     Calif. 
180),   70. 

Paine  v.  Skinner  (8  Ohio  159),  70. 


Pearce  v.  Bastable   (L.  R.  Ch.  122, 
125),  119. 

Pearce    v.    Wore     (94    Mich.    321), 

226. 

Peay  v.  Capps  (27  Ark.  160),  155. 

Peckham  v.  Balch   (49  Mich.   179), 
96. 

Pearson     v.     Gardner     (202     Mich. 
360),   112,  121,   144. 


TABLE  OF  CASES  609 

[References  are  to  Sections] 

Pearson    v.    Adams    (29    S.    O.    977,  Place  v.  Brown  (37  Mich.  575),  231. 

127  Ala.  157),  74.  Powell  v.  Dayton  etc.  R.  R.  Co.  (12 

Pearson  v.  Home   (139  Ga.  453,  77  Ore.  488,  8  Pac.  544,  14  Ore.  35G, 

S    E   387),  258.  12  Pac-  665,  16  0re-  33>  8  Am-  st- 

x,     Li.             \rr  i \    /^o  «!„!,     i7cn  ReP-   251>   16  Pac-   863)>  23- 

Peckham  v.  Walsh   (49  Mich.  179),  *                                   " 

Powell  v.  Dayton  (36  S.  E.  796).  23. 

Powers     v.     Schottens     (70     Mich. 

Pendergost     v.     Pendergost      (206  2§S),  152 

Mich.  526),  20,  112.  Pratt    v     Allegan    Cir.    Judge    (177 

Pence  v.  Miller  (140  Mich.  205),  71.  Mich.  558),  212. 

Peudhill   v.    Union    Mining   Co.    (64  Prive  v.  Haynes  (37  Mich.  489),  43. 

Mich.  172),  64.  Probett  v.  Walters   (70  Mich.  437), 

Peele    v.    Chener    (Mass.,    8    Allen  198- 

89)    76  Pullings  Est.  (97  Mich.  376),  43. 

Peters    v.    Fisher    (50    Minn.    331),  PIumer  v-  Brown  <8  Metc-   <Mass-) 

164  578),  76. 

Peters  v.   Canfield    (74   Mich.   498),  Q 

176.  Quarg  v.   Scher   (136  Calif.  406,  69 

Perkins  v.  Nugent   (45  Mich.  146),  Pac.  96),  211. 

152.  R 

Perry    v.    Boyd    (126    Ala.    162,    28  Radford  v.  Wilson  (2  Bosw.  (N.  Y.) 

South  711),  215.  237),  219. 

Perkins    v.    Hadsell    (50    111.    216),  Randell   v.   Chubb    (46   Mich.   311), 

252.  172. 

Perkins    v.    Hadsell    (50    111.    216),  Rathbone   v.   Groh    (137   Mich.   373, 

259.  100  N.  W.  568),  116,  257. 

Picard  v.  McCormick  (11  Mich.  68),  Raubitschek    v.    Blank    (80    N.    Y. 

209.  479),  10. 

Pick  v.  Rubicon   (27  Wis.  433),  442.  Raynard  v.  Davis    (127  Mich.  571), 

Pike  v.  Pike   (121  Mich.  170),  20.  114. 

Pinch  v.  Hataling   (142  Mich.  522),  Realty    Co.    v.    Shaffer    (176    Mich. 

212.  639),  106. 

Prichard  v.  Atkinson  (3  N.  H.  335),  Rease  v.  Kittle   (56  W.  Va.  269,  49 

78.  S.  E.  150),  252,  259. 

Pingle    v.    Connor    (66    Mich.    187),  Reed  v.  Lukens   (44  Pa.  St.  200,  84 

109.  Am.  Dec.  425),  23. 

Phelan  v.  Paycreno  (74  Calif.  456),  Re.    Appeal    of    Nellie    Lewis     (85 

18.  Mich.   340),   45. 

Phillips  v.  Stanich    (20  Mich.  369),  Re.  Est.  of  Pulling   (97  Mich.  376), 

102.  43. 

Phinney    v.    Hall    (101    Mich.    451),  Re.     Stanton's    Estate     (142    Mich. 

243.  495),  43. 

Phinizy  v.   Guernsey    (111   Ga.   346,  Reimer  v.  Rise    (38  Wis.  16,  59  N. 

78  Am.  St.  Rep.  207),  23.  W.  450),  251. 


610 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 
Relf  v.  Cherly  (23  la.  467),  215. 
Reo   Car  Co.   v.   Young    (209   Mich. 

591),  112. 
Renard  v.  Klinck  (91  Mich.  1),  198. 
Rev.    Stat.    Mich.    (1858),    pp.    573, 

574;   1. 
Rhea    v.     Myers    Est.     (Ill     Mich. 

140),  19. 
Rice  v.   Gibbs    (40  Neb.  264,   58  N. 

W.  724),  252. 
Ricker  v.  Butler   (45  Mich.  545,  42 

N.   W.),   407. 
Richardson  v.  Hartwick  (106  U.  S. 

252),  259. 
Rhode   v.   Hassler    (113    Mich.    56), 

86. 
Richmond    v.    Robinson    (12    Mich. 

201),  193,  231. 
Richardson  v.  Green  (61  Fed.  423), 

231. 
Ricker  v.  Butler  (45  Minn.  545),  76. 
Richmond    v.    Robinson    (12    Mich. 

193),  102. 
Rife  v.  Lyborger  (49  Ohio  St.  422, 
31  N.  E.  768,  17  L.  R.  A.  403),  78. 
Riopelle   v.   Gilman    (23    Mich.   33), 

76. 
Robson     v.     Townley     (176     Mich. 

581),  43. 
Robert  v.  Merchant   (1  Hare  547), 

115. 
Robinson  v.  Perry    (21  Ga.   183,  68 

Anno.  Dec.  455),  172. 
Robinson  v.  Trufant  (97  Mich.  410), 

178. 

Rockland    Rockport    Lime    Co.    v. 

Leary    (203   N.  Y.   469,  97   N.  W. 

43,  L.  R.  A.  1916  F-352),  255,  257. 

Rodenhouse   v.   Degolio    (198   Mich. 

402),  59. 
Rogers  v.  Eaton  (181  Mich.  620),  77. 
Rodgers  v.  Bevkel    (172   Mich.  530, 

544),  73. 
Rogers  v.  Eaton  (181  Mich.  620),  77. 


to  Sections] 

Roper  v.  Milburn   (93  Neb.  809,  142 
N.   W.   792,   Am.    Cases   1914,   B- 
122),   2. 
Rosenbaum   v.    Tyszka    (192    Mich. 

457),  18. 
Rose  v.  Loescher   (152  Mich.  385), 

145. 
Ross  v.  Leascher   (152  Mich.  589), 

145. 
Ross  v.  Parks  (93  Ala  153,  8  S.  Rep. 
368,  30  Am.  St.  Rep.  11  L.  R.  A. 
148),   248. 
Rowden  v.   Dodge    (40   Mich.   697), 

10,   12. 
Rowe    v.    Kellogg    (54    Mich.    206), 

152. 
Roup  v.  Roup   (136  Mich.  385),  22. 
Roy  v.  Haviland  (72  Ind.  364),  231. 
Rubenstine   v.    Powers    (215    Mich. 

435),  112. 
Rucker  v.  Jackson  (60  So.  139,  180 

Ala.  109),  74. 
Rude  v.  Levy  (43  Col.  482,  96  Pac. 
560,   24   L.   R.   A.   91,   27   Am.    St. 
Rep.  123),  259. 
Russell  v.  Androe  (79  Wis.  108,  48 

N.  W.  117),  251. 
Russell  v.   Nester    (46   Mich.   291), 

115. 
Russell  v.   Meyers    (32   Mich.   522), 

12. 
Russell  v.  Sweezey  (22  Mich.  255), 

58,  116. 
Rust  v.  Conrod    (47  Mich.  449,  499, 
454,   11   N.  W.   465),   20,   103,   105. 
Ryan   v.   United    States    (136  U.   S. 

68,   84-86),   10. 
Ryder  v.  Flanders   (30  Mich.  336), 

151. 
Ryderson  v.  Willis   (81  N.  Y.  277), 
215. 

S 

Sabine    v.    Johnson    (35    Wis.    185, 

201),  78. 
Saffrain  v.  McDonald  (27  Ind.  269), 

252. 


TABLE  OF  CASES 


611 


[References  are  to  Sections] 


Saltonstall  v.  Gordon  (33  Ala.  149), 

225. 
Sandum     v.     Johnson     (122     Minn. 

368,   142   N.   W.   878,   48   L.   R.   A. 

(N.    S.)    619),   78. 
Sanquerisee    v.    Benedetti    (1    Bar. 

315),    109. 
Sargent   v.   Ballard    (Mass.,   9   Pick 

251),  76. 
Sarnceno     v.     Carrano     (92     Conn. 

563,   103   Atl.   631),   253. 
Satterlee   v.    Cronkhite    (114    Mich. 

634),  171,  180. 
Sanrs  v.  Giddings  (90  Mich.  50),  74. 
Sawyer     v.      Kendall      (10     Cush. 

(Mass.)   241),  76. 
Sayles    v.    Curtis    (45    Mich.    279), 

151. 
Sayers    v.    McKenner    (211    Mich. 

249),  122. 
Scofield  v.  Lansing  (17  Mich.  437), 

64. 
Scadin  v.  Sherwood  (67  Mich.  230), 

77. 
Schmide     v.     Gaukler     (156     Mich. 

243),  186. 
Schmidt    v.    Steinback    (193    Mich. 

640),  86,  116. 
Schoenfeld    v.    Kemter    (211    Mich. 

464),  122. 
Schuler    v.     Bomonder     (80    Mich. 

531),  198. 
Schwartz    v.    Woodruff    (132    Mich. 

513),   77. 
Schweiss    v.    Woodruff     (73    Mich. 

473),   57,  116. 
Scott  v.  Bush  (26  Mich.  418),  10,20. 
Scott  v.    Sullivan    (159   Mich.   297), 

171,  180. 
Seager  v.  Cooley  (44  Mich.  14),  58, 

116. 
Sears  v.  Smith  (2  Mich.  243),  231. 
Security  Investment  Co.  v.  Meister 

(214  Mich.  337),  79,  94. 


Sewell  v.  Underhill   (197  N.  Y.  168, 

27  L.  R.  A.   (N.  S.)    233,   134   Am. 

St.  Rep.  863,  18  Ann.  Cases  795), 

23. 
Seymour  v.   Rood    (121  Mich.   173), 

79. 
Seymour  v.  Warren   (179  N.  Y.  1), 

10,  15. 
Segler  v.    Segler   (108    Mich.   591), 

112. 
Shaeffer  v.  Shiade  (7  Blackf.  (Ind.) 

178),  214. 
Shafer  v.  Niver  (9  Mich.  253),  178. 
Shaw  v.   Nichalay   (30  Mo.   99),  76. 
Shelden  v.   Mich.  Cent.   R.   R.   (161 

Mich.  503),  76. 
Shipman    v.     Campbell     (79     Mich. 

82),  18. 
Showers    v.    Robinson     (443    Mich. 

502),  71. 
Shultz  v.   Redondo    (156  Calif.   439, 

105  Pac.  1180),  211. 
Shupert  v.  Ingham  Co.  Treas.   (214 

Mich.  333),  59. 
Sigler  v.  Silger  (108  Mich.  591),  20. 
Silver  v.  Daenzer   (167  Mich.  362), 

77. 
Silver  v.  Shulman  (213  Mich.  211), 

96,  100,  122. 
Simis  et  al.  v.  McElray  (160  N.  Y. 

156,  54  N.  E.  674,  73  A.  S.  R.  673), 

78. 
Simmon  v.  Zimmerman    (144   Calif. 

256,   79   Pac.  451,   1  Anno.   Cases 

850),  172. 
Simon    et    al.    v.    Vanderver     (155 

N.  Y.  377.  49  N.  E.  1043,  63  A.  S. 

R.   6S3),  78. 
Sixta    v.    Ontonagon    Valley    Land 

Co.    (157    Wise.    293,    147    N.    W. 

1042),  258. 
Skinner   &    Sons    v.    Houghton    (92 

Md.  St.  Rep.  485,  48  Atl.  85).  23. 
Slaver  v.  Breese   (36  Mich.  77).  18. 


612 


THE   LAW   OF   LAND   CONTRACTS 


[References  ar 
Slocum   v.    Smith    (195   Mich.   281), 
242. 

Slotkin  v.  Schuman  (210  Mich. 
513),   97,   98,   122. 

Small  v.  Kennedy  (137  Ind.  299,  33 
N.  E.  674),  212. 

Smellings     v.     Salley     (103     Mich. 

580),   20. 
Smiddy  v.   Grafton    (163    Calif.    16, 

124  Pac.  433,  Anno.  Cases  (1913) 

E-923),  255. 
Smith  v.   Fleeks    (App.    69   Pa.    St. 

474),  253. 

Smith  v.  Bangham  (156  Calif.  359, 
104  Pac.  689,  29  L.  R.  A.  (N.  S.) 
522),  257,  259. 

Smith  v.  Mich.  Realty  Co.  (175 
Mich.    600),   211,   242. 

Smith  v.  Ryan  (191  N.  Y.  452,  84 
N.  E.  402),  215. 

Smith  v.  Lawrence  (15  Mich.  499), 
20. 

Smith  v.  Woodson  (Ky.,  92  S.  W. 
980),  225. 

Smith  v.  Starke  (196  Mich.  311), 
242. 

Smith  v.  Reed   (24  Mich.  240),  164. 
Smith    v.   Nelson    (165    Mich.    438), 

166. 
Smith   v.    Hunter    (241    111.    514,    89 

N.  E.  686,  132  A.  S.  R.  231),  78. 
Smith    v.    Hughes     (50    Wis.    620, 

627),  78. 
Smith   v.   Mellon    (116   Minn.   198), 

78. 
Smith  v.  Tock  (61  Ind.  App.  42,  111 

N.  E.  442),  110. 
Smith  v.   Mathias    (174   Mich.  262), 

16. 
Smith  v.  Livermore  (15  Mich.  381), 

499. 
Smith  v.  Sheridan  (175  Mich.  403), 

43. 


e  to  Sections] 

Smythe    v.    Henry    (41    Fed.    705), 
214. 

Snow  v.  Nelson  (113  Fed.  353),  252. 

Snowman  v.  Harford   (57  Me.  397), 

109. 
Snyder  v.    Castor    (4   Yeates   353), 

19. 
Solomon  v.  Shentz   (185  Mich.  620, 

150  N.  W.  196),  95,  102,  115,  250. 
Sovereign     v.     Orlman     (47     Mich. 

181),  12. 

Spraule   v.  Ala.   &   V.   Ry.   Co.    (29 
So.  163),  74. 

Spaulding    v.    Archibald    (52    Mich. 

365),   12. 
Springfield  Traction  Co.  v.  Warrick 

249  111.  470,  94  N.  E.  933),  214. 
Stanton's  Est.    (142  Mich.  491),  43. 

St.  Luke's  Parish  of  Cedar  Falls  v. 
Miller    (la.,  84  N.  W.   686),  74. 

State    Security    &    Realty    Co.    v. 

Badger  (200  Mich.  104),  213. 
Starrs  v.  Scougale    (48  Mich.  387), 

225. 
Standard  Steel  Co.  v.  Stamm    (207 

Pa.  St.  419,  56  Atl.  954),  225. 
Standard  Oil  v.  Murray   (214  Mich. 

297-299),   113. 
Statt  v.  Avery  (156  Mich.  674),  112. 
State    Security    &    Realty    Co.    v. 

Shaffer  (176  Mich.  639),  114. 
Stamp  v.  Steel  (209  Mich.  205),  18. 
Starkweather     v.      Benjamin      (32 

Mich.  305),  211. 
Stevens  v.   Castel    (63   Mich.   Ill), 

58. 
Stewart  v.   Gardner    (152   Ky.   120, 

153   S.  W.  3),   254. 
Stenbridge   v.    Stenbridge    (87   Ky. 

91,  7  S.  W.  611),  252. 
Stephens  v.  Black  (77  Pa.  138),  155. 
Steinbach    v.    Hill    (25    Mich.    78), 

204. 


TABLE  OF  CASES 


613 


[References  are  to  Sections] 


Stevens    v.    Castel    (63    Mich.    111- 

117),  22,  58,  116. 
Stevens  v.  Stevens   (181  Mich.  438, 

449),  61. 
Stevens     v.     Jackson     (180     Mich. 

131),  13. 
Steven    v.    Wakeman     (213     Mich. 

560-567),  14,  43. 
Stevens    v.     Leonard     (122     Mich. 

125),  43a. 
Stickney    v.    Parmenter    (35    Mich. 

237),  171,  182,  183. 
Stonehouse     v.     Stonehouse      (156 

Mich.  686),  20. 

Stoney  Creek  Woolen  Co.  v.  Smal- 
ley    (111    Mich.    322),    212. 

Stoddard     v.     Prescott     (58     Mich. 

542),  64. 
Strasser  v.  Stick   (216  Pa.  St.  577, 

66  Atl.  87),  252. 

Strang    v.    Goose    (110    Mich.    153, 

67  N.  W.  1108),  251. 

Stange  v.  Wilson  (17  Mich.  341),  24. 
Stringer     v.     Gamble     (155     Mich. 

295),   62. 
Stuart  v.  Mattern   (141  Mich.  686), 

20. 
Stuhr  v.  Butterfield  (151  la.  736,  36 

L.   R.   A.    (N.   S.)    321,   130   N.  W. 

897),   78. 
Stutts  v.  Brown  (112  Ind.  370),  186. 
Sullivan  v.  Dunham  (42  Mich.  521), 

14. 
Summer  v.  Staton   (N.  C,  65  S.  E. 

902),  214. 
Summers    v.    Abernathy    (234    Mo. 

126,  136  S.  W.  289),  214. 
Supple  v.  Wheeler  (210  Mich.  672), 

22. 
Sutton  v.    Rowley    (44    Mich.   112), 

10,  19. 
Surgey  v.  Dickey   (199  Mich.  251), 

77. 


Swallow    v.    Strom     (83    Minn.    87, 
85    N.    W.    942),    10. 

Swint  v.   Carr    (76   Ga.   322,  2  Am. 
St.  Rep.  44),  106. 

Swimm  v.  Bush  (23  Mich.  99),  225. 
Sword  v.  Keith  (31  Mich.  247),  19. 


Tabor  v.   Mich.   Mut.  Life   Ins.   Co. 
(44  Mich.  324),  199. 

Tabler    v.    Sheffield    Land    Co.    (79 
Ala.   377,  58  Am.   Rep.   593),  172. 

Talbot   v.    Cook    (112    Pac.    709,    57 
Ore.   535),  74. 

Tandy  v.  Weerch   (154  Cal.  108,  97 
Pac.  69),   210. 

Tate  v.  Aitken   (5   Calif.   App.   505, 
90  Pac.  836),  251. 

Tattan   v.    Bryant    (198    Mich.    515, 

165  N.  W.  778),  96,  250,  253. 
Taylor     v.     Boardman     (24     Mich. 

387),  19. 
Taylor  v.   Scott   &   Co.    (149   Mich. 

525),  10. 
Taylor  v.   DeVoe    (100   Mich.   581), 

79. 
Tewksbury    v.    Howard     (138    Ind. 

110),  70. 
Thatcher  v.   St.   Andrews'   Church, 

22. 

Thomas  v.  Cain  (35  Mich.  155),  64. 

Thomas   v.    Miller    (202    Mich.   43), 
210. 

Thomas  v.  McCue   (19  Wn.  287,  53 
Pac.  161),  214. 

Thomas   Sand    &   Title   Co.   v.    De- 
ville    (100   Ind.  309),   10. 

Thomason    v.    Bescher    (176    N.    C. 
622),  248. 

Thompson's  Title  to  Real  Est.,  77. 


614 


THE   LAW   OF  LAND   CONTRACTS 


[References  ai 

Thompson   v.    Stillwell    (161   S.   W. 

681,   253    Mo.   89),   74. 
Thompson  v.  Milliken  (93  Kan.  72, 

143  Pac.  431),  216. 
Thompson    v.    Hurson     (201    Mich. 

685),   13. 
Thompson  v.  Sheppard   (Ala.,  5  So. 

334),  218. 
Tibbens  v.  Burrell  (46  Pa.  Sup.  Ct. 

466),   214. 
Tiedman    on    Real    Prop.    (3    Ed.), 

183. 
Timkin  v.  Piper  (141  Mich.  95),  79. 
Todd     v.     McLaughlin     (125     Mich. 

268),  77. 
Tompkins    v.    Hollister    (60    Mich. 

470),  199. 

Tong  v.  Martin  (15  Mich.  60),  226. 

Topp   v.   White    (12  Heisk    (Tenn.) 
165),   231. 

Tower  v.  Det.  Trust  Co.   (19  Mich. 

670),  171,  181. 
Townsend  v.  Goodfellow   (40  Minn. 

312,   41   N.  W.   1056,   12   A.    S.   R. 

736,  3  L.  R.  A.  739),  78. 
Townsend    v.    Vanderwerker     (160 

U.  S.  171,  40  L.  Ed.  383,  16   Sup. 

Court  258),  21,  62. 

Trast  v.   Courtes    (172   Mass.   401), 
76. 

Tradesman    Co.    v.    Superior    Mfg. 
Co.  (147  Mich.  702),  206. 

Trice  v.  Kayton   (84  Va.  217),  78. 

Triangle  Land   Co.  v.   Nessen   (155 
Mich.   483),  82. 

Trustee  v.  Walrath  (27  Mich.  232), 
145. 

Truesdail  v.  Ward   (24  Mich.  116), 
182. 

Tull   v.   Wright    (37    Mich.    93),   71. 
Turner  v.  Union  Pac.  Ry.  (112  Mo. 
542,  20  S.  W.  673),  74. 


e  to  Sections] 
Turner   v.    McCormick    (56  W.   Va. 
161,  49  S.  E.  28,  108  Am.  St.  Rep. 
904,  67  L.  R.  A.  853),  254. 

U 

Underwood    v.    Slaght    (213    Mich. 

391),   14. 
Union   Trust   Co.   v.   Det.   Common 

Council  (170  Mich.  692),  59. 

Union   Trust   Co.   v.   Rodford    (176 

Mich.  50),  59. 
United    States    v.    Sutherland     (60 

U.  S.   (19  Howell)  363,  15  L.  Ed. 

666),  18. 
Uran  v.  Coates  (109  Mass.  578),  15. 

V 

Van  Auken  v.  Livingston   (34/384), 

151. 
Vanderkarr  v.  Thompson  (19  Mich. 

82),  24. 

Van  Duren  v.  Lamphear   (54  Mich. 

575),   43. 
Vandervelde   v.  Wilson    (176  Mich. 

191),  82. 
Van   Norsdal   v.   Smith    (141   Mich. 

355),  105. 
Van  Praeger  v.  Everidge   (1902)    (2 

Ch.  App.  271),  110. 
Van  Vleet  v.  Blackwood   (39  Mich. 

728),  156. 
Vassault  v.  Edwards  (43  Coly  459), 

246,   253. 
Vaughn  v.  Sheridan  (50  Mich.  155), 

242. 
Veyer    v.    Mound    City    Assn.     (97 

Calif.  659),  18. 
Vincent  v.  Evans   (165  Mich.  695), 

79. 
Vincent  v.  City  of  Kalamazoo  (111 

Mich.  230),  76. 
Vought  v.  Williams  (120  N.  Y.  253, 

24  N.   E.   195,   17   A.   S.   R.   634,   8 

L.  R.  A.  591),  78. 


TABLE  OF  CASES  615 

[References  are  to  Sections] 

W  Warren    v.    Fenn    (28    Barb.    N.    Y. 

Wabash  Ry.   Co.   v.  Grote    (53   Ind.  333)'   62- 

App    583)    209  Warren  v.  Warren  (151  Mich.  402), 

79. 

Wadell  v.  Williams   (62  Mich.   50),  TTr 

18  Warren   Mfg.   Co.  v.   City  of  Balti- 

_  .'                   .  more   (119  Md.  188,  86  Atl.  502), 

Waite  v.  Stanley  (88  Vt.  407,  L.  R.  105 

A.  (N.  S.)  1916  C),  23.  Warville  v.  Vendors  (Sec.  735),  186. 

Wales  v.  Coffin  (95  Mass.,  13  Allen  Watkins  v.  Miner   (214   Mich    380) 

213).  43.  95f  120 

Walker     v.     Casgram     (101     Mich.  Waterman  v.  Bank  (144  U    S    394) 

604),  207.  254. 

Walker   v.   Walker    (la,    61    N.   W.  Watson  v.  Coast  (35  W.  Va.  463,  14 

930),    231.  S.  E.  249),  255. 

Walker     v.     Sullivan     (127     Mich.  Watson    Coal    Co.    v.    Casteel    (68 

267),   114.  Ind.  476),  216. 

Walker    v.     Casgrain     (101     Mich.  Watson     v.     Wagner     (202     Mich. 

608),  186.  397),  228. 

Walker     v.     Gillman      (127     Mich.  Watler  v.  Hartwig  (106  Ind.  123,  6 

269),  77.  N.   E.    5),    64. 

Walker  v.  Schultz  (175  Mich.  280),  Way  v.  Root  (174  Mich.  418),  99. 

86.  Wayne  v.  Beeman  (211  Mich.  361), 

Walker  v.  Kelley  (91  Mich.  212,  51  97,  98. 

N.  W.  934),  103.  Wayne    v.     Herkimer     (167     Mich. 

Walsh  v.  Branard   (Minn.  1905,  103  587),  209. 

N.  W.  1031),  10,  15.  Wayne    Woods    Land    Co.    v.    Bee- 
Walsh  v.  Dord   (277  Ex.  Civil  App.  man    (211    Mich.   360,   178   N.   W. 

573,  66  S.  W.  854),  150.  696),    259. 

Walsh  v.  Branard   (Minn.  1905,  103  Weaver    v.     Richards     (144     Mich. 

N.   W.    1031),    10.  395),    77. 

Wallace  v.  Kelley   (148  Mich.  338),  Weaver  v.    Burr    (3100   Va.   736,   8 

12.  S.  E.  745),  248,  253. 

Waller    v.    Lieberman     (214    Mich.  Webster  v.  Cecil  (30  Baer  62),  110. 

441,  445),  14,  24.  Webster   v.    Bailey    (31    Mich.    36), 

Walsh  v.  Oakman   (199  Mich.  688),  209. 

24.  Weber    v.    Weber    (47    Mich.    569), 

Wanser  v.  DeNyse  et  al.  (188  N.  Y.  210. 

378,  80  N.   E.  1088,   117  A.   S.  R.  Webster   v.   Bailey    (31    Mich.    36), 

871),   78.  214. 

Ward  v.  Davis   (154  Mich.  413),  15.  Webster  v.  Gray  (37  Mich.  37),  10. 

Wardell  v.  Williams    (62  Mich.   50,  Webster  v.   Brown    (67   Mich.   32S), 

55),  18.  18. 

Warren   v.    Richmond    (53   111.    42),  Weed    v.    Torry     (2    Doug.    Mich.) 

109.  344,   45   Am.   Inc.    257),    102,    109. 


616 


THE   LAW   OF   LAND   CONTRACTS 


[References  are 
Weissert  v.  Fuller  (188  Mich.  327), 

86. 
Weiss    v.    Claborn    (Tex.    C.    App., 

219  S.  W.  884),  253. 
Weisberger    v.    Wisner    (55    Mich. 

518),   58,  116,   246. 
Welsh  v.  Oakman   (199  Mich.  188), 

16. 
Welch  v.  Welsy   (62   Mich.  15),  20. 
Wells  v.   Calnan    (107  Mass.  514,   9 

Am.  Rep.   325),   23. 
Wellburn   v.    Tiller    (10    Ala.    305), 

231. 
Welling    v.    Strickland    (161    Mich. 

235),  180. 
Wellington  v.  Strickland  161  Mich. 

235),  148. 
Western  Co.  v.  Novatny   (32  S.  D. 

565,  143   N.  W.  895),   209. 
Wesley  v.   Ells   (177   U.   S.   370,   20 
S.  Ct.  661,  44  U.S.   (L.  Ed.)  810), 
78. 
Western   R.   R.   Co.   v.  Babcock    (6 

Met.  346),  110. 
West    Va.    Pulp    &    Paper    Co.    v. 
Cooper  (W.  Va.,  106  S.  E.  55), 245. 
Wetmore   v.    Neuberger    (44    Mich. 

362),    20. 
Whealton    et    al.    v.    Daughty     (72 

S.  E.  112,  Va.  649),  74. 
Whitbeck  v.  Cook  (15  John  (N.  Y.) 

482),  78. 
White  v.  Hoenighousen   (211  Mich. 

471),   242. 
White  v.  Hapeman   (43  Mich.  267), 

151. 
White  v.  Nutt   (1  P.  Wms.  61),  23. 
Whitaker    v.    Erie    Shooting    Club 

et  al.    (102  Mich.  454),  74. 
Whitney  v.   Port  Huron    (88   Mich. 

268),   64. 
Whitman    v.    Whitman    (207    Mich. 
337),   112. 


to  Sections] 
Whiting  v.   Butler    (29   Mich.   122), 

12,  151. 
Wilcox  v.  Cline   (70  Mich.  519),  15. 
Wiley  v.  Lovely   (46  Mich.  83),  18. 
Wilhelm     v.     Herron     (211     Mich. 

339),  76,   79. 
Wilbur  v.  Flood  (16  Mich.  40),  218. 
Wilkinson    v.    Williams    (51    Mich. 

156),   151. 
Wilkinson    v.    Hardaway    (159   Ala. 

565,  48  P.  678),  252. 
Wills  v.  Ross   (77  Ind.  1),  10. 
Williams  v.  Smith   (161  Mass.  48). 

10. 
Williams   v.    Fox    (152    Mich.    217). 

71. 
Williams  v.  Bricher  et  al.  (83  Kan. 
53,  30  L.  R.  A.    (N.   S.)    343),   78. 
Williams  v.  Shuman  (141  Ga.  114), 

186. 
Williams   v.   Spurr    (24   Mich.  335), 

225. 
Williams    Estate    (106    Mich.    490), 

19. 
Wiechers  v.  McCormick  (107  N.  Y. 

Supp.   835),  74. 
Wilson  v.  Larson   (138  la.  708,  116 

N.    W.    703),    106. 
Wilson  v.  Bolen  (152  111.  App.  210), 

210. 
Wilson     v.     Eggleston     (27     Mich. 

257),   226,   228. 
Winders  v.  Keenan  (161  N.  C.  628, 

77   S.    E.    687),   250. 
Wisconsin    etc.    R.    R.    Co.    v.    Mc- 

Kenna  (139  Mich.  43),  22. 
Witt  v.    Sims    (Ga.,   78   S.   E.   467), 

214. 
Wittings    Succession    (121    la.    510, 
46    So.    606,    15   Am.    Cases    379), 
257. 
Whitford   v.    Crux    (54    Mich.    261), 

76. 
Winter    v.    Lord    Anson     (3    Russ. 
488),   62. 


TABLE  OF  CASES 


617 


[References  are  to  Sections] 
Wollenslagle    v.    Runals    (76    Mich.      Wright    v.    Wright    (37    Mich.    55), 

545),  209.  212. 

Wood  v.  Davis   (154  Mich.  413,  117      Wright  v.  Deniston  (29  N.  Y.  Supp. 

N.  W.  897),  254.  718),  214. 

Woodward  v.  Clark  (15  Mich.  104),      Wright  v.  Peet  (36  Mich.  213),  218. 


58. 
Woodfolk  v.  Norley  (98  Tenn.  467, 

40   S.  W.   479),   216. 
Woods   v.    Palmer    (151    Mich.    30), 

243. 
Woods   Land   Co.   v.    Beeman    (211 

Mich.  360),  122. 
Woodward    v.    Walker    (192    Mich. 

188),  112. 
Woodward  v.  Clark  (15  Mich.  104), 

58. 
Woodwarth    v.    Porter    (213    Mich. 

314),   121. 


Wright    v.    Wright    (37    Mich.    35), 

204. 
Wright  v.    Trover    (73    Mich.    495), 

145. 
Wright  v.  DeGroff   (14  Mich.   164), 

10. 

Y 

Yale  v.  Stevenson  (58  Mich.  537), 

151. 
Yerkes  v.  Richards  (153  Pa.  St. 

646,  34  Am.  St.  Rep.  721,  26  Atl. 

Rep.  221),  248. 


Woodworth    v.    Gorton     (46    Mich.      Yonell  v.  Kridler   (105  Mich.  344), 

324),  64. 
Worthley    v.    Burbanks    (45    N.    E. 

779,  146  Ind.  534),  74. 


14. 

Yonvell    v.    Allen    (18    Mich.    107), 
14,  109. 


World    Mfg.    Co.    v.    Kent    Circuit      y  y    Walker   (224   Masg    49 

Judge    (115  Mich.   652),  123.  186 

Worth  v.  Watts    (76  N.  J.  Eq.  299,  z 

74  Atl.  434),  101. 
Worcester  v.  Cook  (220  Mass.  539,      Zetterlund   v.    Texas    L.    &    C.    Co. 


108  N.  E.  511),  211. 
Wolf  v.   Meyantz    (184   Mich.   452), 
24. 


(55  Neb.  355,  75  N.  W.  860),  172. 
Zigen    v.    Rosier    (200    Mich.    328), 
122. 


World  Mfg.  Co.  v.  Kent  Cir.  Judge,      Zimmerman    v.    Miller    (206    Mich. 
(115  Mich.  650),  80.  600),  18. 


Index  To  Forms 


[References  are  to  Pages] 

ACKNOWLEDGMENTS : 

authentication  of  written  instruments  executed  outside  of  state,  108  N. 
containing  statutory  provision,  104,  107. 

AFFIDAVITS : 

on  appeal  in  summary  proceedings,  334. 

posting  notices  of  sales,  on  sale  by  circuit  court  commissioners,  413. 

recording  of,  to  remedy  defect  of  record,  126. 

to  correct  names  of  parties,   126. 

AGREEMENT    PRELIMINARY: 
escrow,   73. 

form  favorable  to  vendee,  67. 
form  favorable  to  vendor,  68. 
short  form,  65. 
short  form,  for  sale  of  real  estate  for  cash,  64. 

ANSWER  IN  EQUITY: 

answers  used  in  late  Michigan  cases: 

Banski  v.   Milchalski    (204   Mich.   15),   involving  fraudulent  mis- 
representations, 532. 

Bignell    v.    Franks    (212    Mich.    236),    involving    foreclosure    of 
vendor's  lien,  422. 

Birney    v.    Ready    (216    Mich.    7),    involving    specific    perform- 
ance, 288. 

Clark    v.    Johnson      (214    Mich.    578),    involving   reformation   of 
land  contracts,  459. 

Hubbel   v.   Ohler    (213   Mich.   664),   involving   forfeiture   of   land 
contracts,  388. 

LaBranch   v.   Perron   (209   Mich.   239),   involving  reformation  of 
land  contracts,  478. 

Lozon  v.   McKay    (203    Mich.   364),   involving  forfeiture  of  land 
contracts,  380. 

Lyle  v.  Munson   (213  Mich.  250),  involving  specific  performance 
and  equitable  estoppel,  299. 

Moore  v.  Provost   (205  Mich.  687),  involving  remedying  defects 
in  title,  213. 

Security  Investment  Co.  v.    Meister   (214   Mich.  337),   involving 
remedying  defects  in  title  and  relief  from  forfeiture,  197. 


INDEX  TO  FORMS  619 

[References  are  to  Pages] 
ASSIGNMENT  OF  LAND  CONTRACT: 
long  form,  89. 
short  form,  with  vendor's  consent,  91. 

BILL   OF  COMPLAINT: 

see  "Cross  Bills". 

cancel  land  contract  after  forfeiture,  182. 

declaring  specific  performance  by  vendee  against  administrator  and 
heirs  of  vendor,  269. 

declaring  specific   performance   agreement  in   writing,   263. 

declaring  specific   performance,   vendor   against   vendee,  271. 

declaring   specific   performance,   verbal   agreement,   266. 

foreclosure  of  land  contract,  406. 

forfeiture,  to  have  legally   established,  340. 

reform  a  land  contract,  452. 

relief  from  forfeiture,  including  averments  for  specific  performance 
and  injunctive  relief,  369. 

rescind  land  contract  for  fraudulent  misrepresentations — (see  also 
forms  used  in  late  Michigan  cases,  supra),  515. 

to  quiet  title  because  of  outstanding  tax  title,  misdescription  of  prem- 
ises, failure  to  state  the  marital  status  of  certain  grantors,  contain- 
ing averments  necessary  in  case  of  unknown  heirs,  legatees  and 
devisees,  177. 

to   quiet  title,   cloud   created   by   quit-claim   deed   by   vendee,   183. 

to  quiet  title  to  an  easement,  186. 
(used  in  late  Michigan  cases.) 

Banski  v.  Milchalski  (204  Mich.  15),  involving  fraudulent  misrep- 
resentations, 522. 

Bignell  v.  Franks  (212  Mich.  236),  involving  foreclosure  of  vendor's 
lien,  418. 

Birney  v.  Ready   (216  Mich.  7),  involving  specific  performance,   2S2. 

Clark  v.  Johnson  (214  Mich.  578),  involving  reformation  of  laud 
contracts,    455. 

Hubbell  v.  Ohler  (213  Mich.  664),  involving  forfeiture  of  land  con- 
tracts, 385. 

LaBranche  v.  Perron  (209  Mich.  239),  involving  reformation  of  land 
contracts,  470. 

Lozon  v.  McKay  (203  Mich.  364),  involving  forfeiture  of  land  con- 
tracts,  372. 

Lyle  v.  Munson  (213  Mich.  250),  involving  specific  performance,  295. 

Moore  v.  Provost  (205  Mich.  687),  involving  remedying  defects  in 
title,  204. 

Nelson  v.  Breitenwischer  (194  Mich.  30),  involving  foreclosure  of 
vendor's  lieu,  440. 


69Q  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
Security  Investment  Co.  v.  Meister  (214  Mich.  337),  involving  remedy- 
ing defects  in  title  and  relief  from  forfeiture,  188. 

BOND  ON  APPEAL: 

in  summary  proceedings,  335. 

BROKERS: 

application  for  license,  broker's,  559. 

application  for  license,  business  chance  broker,  560. 

application  for  license,  real  estate  salesman,  562. 

CERTIFICATE  DISCHARGING  MORTGAGE: 
form  of,  128. 

CIRCUIT   COURT   COMMISSIONER: 

affidavit  of  posting  notices  of  sales,  413. 

affidavit  on  appeal,  before,  334. 

bond  on  appeal,  335. 

complaint  on  summary  proceedings,  330. 

deed  on  foreclosure  sale,  411. 

notice  of  sale  by,  413. 

receipt  from,  on  sale,  411. 

report  of  sale,  414. 

return  on  appeal,  337. 

statement  of  fees  and  disbursements  by,  on  sale,  417. 

CROSS  BILL: 

forms  used  in  late  Michigan  cases: 

Bignel    v.    Franks    (212    Mich.    236)    involving    foreclosure    of 

vendor's  lien,  422. 
Birney  v.  Ready    (216   Mich.  7),  involving  specific  performance, 

288. 
Clark  v.  Johnson  (214  Mich.  578),  involving  reformation  of  land 

contract,  462. 
Hubbel   v.    Ohler    (213    Mich.    664),    involving   forfeiture   of  land 

contract,  388. 
LaBranche  v.  Perron   (209  Mich.  239),  involving  reformation  of 

land  contracts,  478. 
Security   Investment   Co.   v.    Meister    (214    Mich.   337),   involving 

remedying  defects  in  title,  197. 

DAMAGES,  ACTIONS   FOR: 

action  for  fraudulent  misrepresentation,  521. 
forms  used  in  late  Michigan  cases: 

Barnhardt  v.  Hamel   (207  Mich.  232),  involving  fraudulent  mis- 
representation, 546. 
Lion    v.    Henry    Bradford    (209    Mich.    15),    involving    fraudulent 
misrepresentation,  539. 


INDEX  TO  FORMS  621 

[References  are  to  Pages] 

DECLARATION: 

actions  for  fraudulent  misrepresentation,  521. 

ejectment,  form  of,  328. 

forms  used  in  late  Michigan  cases: 

Barnhardt  v.  Hamel    (207   Mich.   232),   involving  fraudulent  mis- 
representation,  546. 
Lion    v.    Henry    Bradford    (209    Mich.    15),    involving    fraudulent 
misrepresentation,  539. 

DECREES: 

foreclosure  of  land  contract,  409. 

foreclosure  of  land  contract,  436. 

forfeiture  effected,  decreeing,  342. 

forefeiture  effected,  denying  relief  to  plaintiff,  form  used  in  Hubbel 
v.  Ohler  (213  Mich.  664),  396. 

for  specific  performance  of  written  contract,  265. 

for  specific  performance,   part   performance   of  verbal   contract,   309. 

quieting  title,  canceling  land  contract,  181. 

quieting  title  for  misdescription  of  the  premises,  failure  to  state 
marital  status  of  certain  grantors,  179. 

quiet  title,  on  bill  to,  in  favor  of  defendant  or  cross  bill,  relieving  de- 
fendant from  forfeiture,  form  used  in  Lyle  v.  Munson  (213  Mich. 
250),   200. 

reforming  land  contracts,   454. 

reforming  land  contract  form  used  in  Clark  v.  Johnson  (214  Mich. 
578),  467. 

reforming  land  contract,  form  used  in  LaBranch  v.  Perron  (209 
Mich.  239),  482. 

rescinding  land  contract  for  fraudulent  misrepresentation,  538. 

to  defendant  on  cross  bill,  200. 

DEEDS : 

By  executor  or  administrator  pursuant  to  land  contract  under  P.  A. 
396,   1919,   280. 

DISCHARGE  OF  ANCIENT  MORTGAGE: 
form  of  certificate,    128. 
form  of  petition,  127. 

EASEMENT: 

bill  of  complaint  to  quiet  title  to,  186. 

EQUITY: 

see  bills  of  complaint,  infra, 
see  decree,  infra. 

ESCROW: 

memorandum   for  disposition  of  land  contract   in,  73. 


622  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

FORECLOSURE  OF  LAND  CONTRACT: 

answer  in  equity. 

form  used  in  late  Michigan  cases: 

Bignell  v.  Franks,  418. 
bill  of  complaint,   406. 
form  used  in  Bignell  v.  Franks,  418. 
Nelson    v.    Breitenwischer,    440. 
before  circuit  court  commissioner: 

for  forms,  see  circuit  court  commissioner,  this  index, 
cross  bill,  form  used  in  Bignel  v.  Franks,  422. 
decree,   foreclosure  of  land   contract,   409. 
decree,  foreclosure  of  land   contract,   436. 

motion  to  dismiss  bill  of  complaint,  failure  to  pay  mortgage  tax,  446. 
notice  of  forfeiture  of  land  contract,  320. 

FORFEITURE: 

see  Summary  Proceedings,  Circuit  Court  Commissioner. 

bill  of  complaint  for  relief  from  forfeiture,  including  averments  for 

specific  performance  and  injunctive  relief,  369. 
bill  of  complaint  to  cancel  land  contract  after  forfeiture,  182. 
bill  of  complaint  to  have  forfeiture  legally  established,  340. 
notice  of,  320. 

FRAUDULENT   MISREPRESENTATIONS: 

answer  in   equity — forms  used   in  late   Michigan   case  of  Banski   v. 

Milchalski,  532. 
bill  of  complaint  to  rescind  land  contract  for,  515. 
bill  of  complaint — form  used  in  Banski  v.  Milchalski,   522. 
declaration,  action  for,  521. 
declaration,  forms  used  in: 

Barnhardt  v.  Hamel,  546. 

Lion  v.  Bradford,  539. 
decree,  rescinding  land  contract  for,  538. 

LAND  CONTRACTS: 

Detroit  land  contract  form,  81. 

for  sale  of  city  lots,  vendor  to  advance  funds  for  building,  91. 

for  sale  of  farm  land  on  long  time,  87. 

form  containing  special  tax  clause,  85. 

form  for  recording  payments  on,  89. 

general  form,  74. 

Union  Trust  Company  form,  78. 

Wayne   County   Abstract   Company's  form,   76. 

LICENSE: 

see  "Brokers". 


INDEX  TO  FORMS  623 

[References  are  to  Pages] 

MOTION: 

to  dismiss  bill  of  complaint,  439. 

used  in  Nelson  v.  Breitenwischer  (194  Mich.  30),  446. 

NOTICE: 

of  forfeiture  of  land  contract,  320. 

of  sale  by  circuit  court  commissioners,  413. 

ORDER: 

of  publication,  Probate  Court,  on  petition  for  specific  performance,  278. 

proof  of  service,  of,  278. 

specific  performance  of  land  contract,  Probate   Court,   279. 

OPINION: 

of  the  trial  court,  306. 

used  in  Lyle  v.  Munson  (213  Mich.  250),  282. 

OPTION: 

form  of,  573. 

PETITIONS: 

for  discharge  of  mortgage,  127. 

for  specific   performance   in   Probate   Court,   276. 

POWER  OF  ATTORNEY: 
to  sell  or  lease  land,  96. 

PRELIMINARY   AGREEMENT: 
form  favorable  to  vendee,  67. 
form  favorable  to  vendor,  68. 
short  form,  65. 

short  form,  for  sale  of  real  estate  for  cash,  64. 
escrow,  73. 

PROBATE: 

order  of  publication  on   petition,  278. 
petition  for  specific  performance,  276. 
proof  of  publication,  279. 
proof  of  service  of  order,  278. 
specific  performance,  order  for,  279. 

PROOF  OF  SERVICE: 
of  order,  278. 
of  publication,  279. 

QUIETING  TITLE: 

answer,  form  used  in  late  Michigan  cases: 
Moore  v.  Provost,  213. 
Security   Investment   Co.   v.   Meister,    197. 


624  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 

bill  of  complaint,  cloud  created  by  quit-claim  deed  by  vendee,  183. 

bill  of  complaint,  to  quiet  title  because  of  outstanding  tax  title,  mis- 
description of  the  premises,  failure  to  state  marital  status  of  cer- 
tain grantors,  containing  averments  necessary  in  case  of  unknown 
heirs,  legatees  and   devisees,   177. 

bill  of  complaint,  to  quiet  title  to  an  easement,  186. 

bill  of  complaint,  forms  used  in  Moore  v.  Provost,  204. 

Security  Investment  Co.  v.  Meister,  involving  remedying  defects 
in  title,  188. 

decree,   quieting   title,   canceling  land   contract,    181. 

decree,  quieting  title,  misdescription   of   premises,    179. 

REAL  ESTATE  BROKERS: 
see  "Brokers". 

RECEIPTS: 

from   Circuit  Court  Commissioners  on  sale,  418. 

REFORMATION  OF  CONTRACTS: 

answer,   forms  used   in  late  Michigan  cases: 

Clark  v.  Johnson,  459. 

LaBranch  v.  Perron,  478. 
bill  of  complaint  for,  452. 
bill  of  complaint,  forms  used  in: 

Clark  v.  Johnson,  455. 

LaBranch  v.  Perron,  470. 
cross  bill,  forms  used  in: 

Clark  v.  Johnson,  462. 

LaBranch  v.  Perron,  478. 
decree,  forms  used  in: 

Clark  v.  Johnson,  467. 

LaBranch  v.  Perron,  482. 

RELIEF  FROM  FORFEITURE: 

answer,  form  used  in  late  Michigan  cases: 
Hubbell  v.  Ohler,  388. 
Lozon  v.  McKay,  380. 
bill  of  complaint,  including  averments  for  specific  performance  and 

injunctive  relief,  369. 
bill  of  complaint,  form  used  in  Lozon  v.  McKay,  372. 
cross  bill,  form  used  in  Hubbell  v.  Ohler,  388. 
decree,  granting  relief  from,  form  used  in  Hubbel  v.  Ohler,  396. 

RETURN  ON  APPEAL: 

in  summary  proceedings,  337. 

SPECIFIC  PERFORMANCE: 

Answer,  forms  used  in  late  Michigan  cases: 


INDEX  TO  FORMS  625 

[References  are  to  Pages] 

Birney  v.  Ready,  288. 

Lyle  v.  Munson,  299. 
bill    of    complaint,    by    vendee    against    administrator    and    heirs    of 

vendor,  269. 
bill  of  complaint,  agreement  in  writing,  263. 
bill  of  complaint,  oral  agreement,  266. 
bill  of  complaint,  vendor  against  vendee,  271. 
bill  of  complaint,  forms  used  in: 

Birney  v.  Ready,  282. 

Lyle  v.  Munson,  295. 
cross  bill,  forms  used  in: 

Birney  v.  Ready,  288. 
decree,  written  contract,  265. 
decree,  part  performance  of  verbal  contract,  309. 

SUMMARY  PROCEEDINGS: 
affidavit  on  appeal,  334. 
bond  on  appeal,  335. 
form  of  complaint  in,  330. 
return  on  appeal,  337. 


General  Index 

[References  are  to  Pages] 

FOR  FORMS,  SEE  INDEX  TO  FORMS 
ABSTRACT  OF  TITLE: 

abstracts  held  defective,  146,  152. 

building  restrictions   as  clouds   on   title,   247,   26   N. 

clouds  on  the  title,  how  removed,  164. 

clouds  on  the  title,  definition  of,  122. 

correcting,  by   removing   ancient  mortgages,   123. 

correcting  defects,  by  recording    affidavits,    126. 

correcting  defects,  by  suit  to   quiet  title,   163. 

defective  abstracts  as  defense  in  specific  performance  suit,  247. 

defects  may  be  waived  by  vendee,  248. 

distinction   between    marketable    and    merchantable    title,    120. 

distinction   between   "good   title"   and   "good   title   as   shown  by  ab- 
stract," 120. 

doubtful  title,  what  is,  120. 

examination  of,  3,  25. 

how  soon  furnished,  25,  259. 

illustrative   cases,   clouds   on   the   title,    122. 

length  of  time  for  examination,  25. 

merchantable,  when  is,  120. 

marketable  title,  what  is,   120. 

provisions  in  contract,  regarding,  4,  9,  25,  68,  120. 

what  company  shall  certify,  3,  25. 

where  contract  is  silent  as  to  kind  of  title,  121. 

who  defrays  expense  incident  to  furnishing,  3,  9,  25. 

who  to  furnish,  9. 

ACCEPTANCE: 

by  letters,  20. 

by  telegraph,  20. 

must  be  unqualified,  20,  22  N. 

sufficiency  of,  20,  22. 

withdrawal  of  offer  before,   22. 

suit  for  specific  withdrawal  of  offer  before,  22. 

ACKNOWLEDGMENTS : 
see  Forms: 

defective  when  recorded   effect  of,  110. 
defective  acknowledgments   curative    statutes,    110 
forms  of,  107,  108,  110. 


INDEX  627 

[References  are  to  Pages] 

form  of  and  statutory   provisions,   107. 

necessity   of,    if  land    contract  recorded,    105. 

not  necessary  to  make  contract  valid,  47,  105. 

not    obligatory    in    land    contracts,    105. 

notarial  seal  when  required,  108. 

of  contracts  executed  in  foreign    countries,    109. 

of  contracts  executed  in  other   states,    108. 

of  written   instruments   executed  outside   the  state,   108. 

when   vendor  is  corporation,   50,  106. 

who  may  take,  105. 

ACTIONS    FOR    FRAUDULENT    MISREPRESENTATIONS: 

see  "Fraudulent  Misrepresentations,"  "Damages,"   "Rescission." 

ADJUSTMENT: 

of  assessments  at  closing  of  transactions,  2,  9. 
of  rentals,  taxes,  etc.,  at  closing  of  transaction,  2. 

ADMINISTRATOR: 

administrator    takes     nothing     where     vendees     are     husband     and 

wife,  102. 
deed,  form  of,  under  land  contract,  280. 
interest  of  vendee  passes  to  heirs  not  administrator,  99. 
may  execute  deeds  in  discharge  of  land  contracts  without  order  of 

court,    272. 
specific    performance   against   form   of   bill   of   complaint,    269. 
specific  performance  in  Probate  Court  by,  273. 
vendor's  interest  passes  to  administrator,  99. 

ADVERSE   POSSESSION: 

acts  which  will  establish,  130,  131,  132. 

action    to    establish,    of   record,    130. 

affidavits   establishing,   130,   131. 

against  municipality,    143. 

against  persons   under  legal   disability,   130,   131. 

against  state,  143. 

as  basis  of  suit   to   quiet   title,   165,   166. 

as  method  of  acquiring  title,   165,   166. 

bill   of   complaint   to   quiet   title   to   easement   obtained    by   adverse 

possession,  186,  132. 
by  one  cotenant  against  another,  134,  135. 
dangers  of  title  by,  130,  131. 
establishing  title  of  record  by,   130. 
easements  obtained  by,  172. 
five   year   period   when    sufficient,   133. 
special   statutes   of  limitations,   133. 
tacking   successive    possessions,    130,    131,    143. 
title  obtained  through,  when  marketable,   136,  120,  121. 


(528  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
title  obtained  through,  not  marketable  of  record,  130. 
vendee  against  vendor,  136. 
wild  and  unoccupied  lands,  136,  137,  138. 

AFFIDAVITS: 

correcting  defects  of  record  by,  126,  127,  129. 
discharging  mortgages  by,  123,  124,  125. 
forms  of,  126,  127. 

statutory  provisions  covering,   126,  127. 
what  defects  may  be  remedied,  126,  129. 

AGENT  AND  PRINCIPAL: 
see  "Principal  and  Agent." 

AGENCY: 

agency  contract  distinguished  from  option  contract,  576. 
agency  contracts  not  within  statute  fraud,  17. 

AGREEMENTS  PRELIMINARY: 

see  "Index  to  Forms,"  "Statute  of  Frauds,"  "Specific  Performance," 

"Land  Contracts,"  "Options." 
actions  at  law  on  partly  performed  verbal  agreement,  56. 
agreement  held  insufficient,  38  to  48. 
agreements  held  not  within  the  statute  of  fraud,  17. 
agreements  held  sufficient,  30  to  38. 
agreements  verbal  partly  performed,  38,  48,  50,  51. 
care  required  in  drafting,  3,  17. 
consideration  need  not  be  stated,  105. 
counsel  acting  in  dual  capacity  in  drafting,  6. 
description  in,  held  insufficient,  28. 
description  in,  held  sufficient,  27. 

effect  of  omitting  to  state  when  possession  will  be  given,  25  N. 
effect  of  void  agreement  under  statute  of  fraud,  48,  48  N,  49. 
equitable  estoppel  relation  to  part  performance,  52,  295,  310. 
essential  elements  of,  27. 

evidence,  required  partly  performed  verbal  agreements,  51. 
executed  on  Sunday  but  pre-dated,  52,  295,  310. 
failure  of  purchaser  to  execute  memorandum,  48  N. 
failure  to  provide  terms  of  payment,  48  N. 
form  favorable  to  vendee,  67. 
form  favorable  to  vendor,  68. 
forms  of  agreement,  see  "Forms,"  66. 
importance  of,  24,  3,  2. 

loss  by  fire  after  execution  and  pending  closing,  58. 
may  consist  of  letters,  telegrams,  etc.,  20,  14. 
must  be  in  writing,  12,  13,  14. 
part  performance  verbal  contracts  acts  insufficient,  55,  56. 


INDEX  629 

[References  are  to  Pages] 
part  performance   verbal   contracts  what  acts   sufficient,   52,    55. 
partly  performed  verbal  agreement  must  be  complete  in  itself,  49  N. 
provisions  should  contain,  24,  3. 
purpose  of,  3. 

relief  refused,  because  of  uncertainty  of  contract,  51. 
subjects  to  be  dealt  with  in,  25. 
sufficiency  of  tender  of  performance,  60. 
void  verbal  agreements  not  admissible  in  evidence,   exceptions,   50, 

48  N. 
void  verbal  agreements,  recovery  of  money  paid  under,  49. 
void  verbal  agreements,  using  as  measure  of  damages,  48  N. 
void  preliminary  agreements  effect  of,  60,  49,  48  N. 
when  partly  performed  verbal  agreement  will  be  enforced,  48  N,  50, 

51,  49. 
where  disposal  of  preliminary  agreement  in  escrow  advisable,  57. 

AMBIGUITY: 

of  terms  in  land  contract  effect  of,  51  N. 

APPEAL: 

from  Probate  Court  decree,  274. 

ASSESSMENTS: 

adjustment  of,  2,  9. 

should  be  dealt  with  in  preliminary  agreement,  2. 

who  shall  pay,  3,  9. 

ASSIGNMENT: 

see  "Assignment  of  Land  Contract." 

to  vendee  of  leases  and  agreements  on  property  purchased,  9. 

ASSIGNMENT  OF  LAND  CONTRACT: 
forms  of   (see  "Index  to  Forms"), 
provision  in  contract  covering,  8. 
substitute  for  clause  prohibiting  assignment,  8. 
short  form  with  vendor's  consent,  91. 
validity  of  cause  against  assignment,  346  to  356. 
waiver  of  right  to  object  to  assignment,  322. 
where  vendor  has  himself  breached  the  agreement,  244. 
wife  of  vendee  need  not  execute  assignment,  100. 

ATTORNEY'S  FEES: 

refusal  of  courts  to  allow,  316. 

who  shall  pay  in  real  estate  transaction,  3. 

AUCTION  SALE: 

clerk's  memorandum  in,  15. 

AUDITOR  GENERAL: 

when  party  to  suit  for  quieting  title,  169  N,  170. 


630  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
BILL  OF  COMPLAINT: 

forms  of  bills  of  complaint,  see  "Forms,  Index  to";  see  also  "Briefs 
Used  in  Late  Michigan  Cases",  "Foreclosure  of  Land  Contracts", 
"Quieting    the    Title",    "Reformation    of    Instruments",    "Specific 
Performance", 
prayer  for  summons  not  required,  166,  173. 
replication  abolished,  166,  167. 
specific  performance  arising  from  written  agreement,  177,  179,  181, 

182,  183,  186,  263. 
statutory  provisions  covering  in  suits  to  quiet  title,  168. 
the  terms  "Complainant"  and  "Register  in  Chancery"  abolished,  166. 
to  quiet  title  to  real  estate: 

by  heir  at  law  not  in  possession,  176. 
when  defect  arises  from  error  in  description,  177. 
when  defect  arises  from  improper  averments  in  deed,  177. 
when  defect  arises  from  land  on  record,   181,  182. 
when  defect  arises  from  misdescription   of  land,   177. 
when  defect  arises  from  quit-claim  from  vendee,  183. 
when  defect  arises  from  tax  titles,    169,   177,   179. 
when  defect  arises  from  unfulfilled  agreement,  173,  176. 
what  averments  not  required  in,  166. 
when  demurrable  and  when  not,  175,  176. 

BOUNDARIES: 

misrepresentation  concerning,  495. 

suit  to  quiet  title  not  proper  remedy  to  determine,  174. 

BREACH   OF  CONTRACT: 

effect  of  first  substantial  breach,  244,  312. 

BRIEFS  USED  IN  LATE  MICHIGAN  CASES: 

Banski  v.  Milchalski  (204  Mich.  15),  involving  fraudulent  misrepre- 
sentations, equity,  522. 

Barnhardt  v.  Hamel  (207  Mich  232),  involving  fraudulent  misrepre- 
sentations, law,  546. 

Bignell  v.  Franks  (212  Mich.  236),  involving  foreclosure  of  vendor's 
lien,  418. 

Birney  v.  Ready  (216  Mich.  7),  involving  specific  performance,  282. 

Clark  v.  Johnson  (214  Mich.  578),  involving  reformation  of  land 
contracts,  455. 

Cooper  v.  Pierson  (212  Mich,  659),  involving  statute  of  frauds,  62. 

Hubbel  v.  Ohler  (213  Mich.  664),  involving  forfeiture  of  land  con- 
tracts, 385. 

LaBlanch  v.  Perron   (209   Mich.  329),  involving  reformation  of  land 

contracts,  470. 
Lian  v.  Bradford  (204  Mich.  172),  involving  fraudulent  misrepresenta- 
tions, law,  539. 


INDEX  631 

[References  are  to  Pages] 

Lozon  v.  McKay  (203  Mich.  364),  involving  forfeiture  of  land  con- 
tracts, 372. 

Lyle  v.  Munson  (213  Mich.  250),  involving  specific  performance  and 
equitable  estoppel,  295. 

Moore  v.  Provost  (205  Mich.  687),  involving  remedying  defects  in 
title,   204. 

Nelson  v.  Breitenwischer  (194  Mich.  30),  involving  foreclosure  of 
vendor's  lien,  440. 

Ogooshevitz  v.  Sampson  (211  Mich.  180),  involving  statute  of  frauds, 
61. 

Security  Investment  Co.  v.  Meister  (214  Mich.  337),  involving  remedy- 
ing defects  in  title,  188. 

BROKERS: 

acts  which  may  sustain  suspension  or  revocation  of  license,  564. 
administrator  or  executor  or  person  selling  under  court  order  need 

not  procure  broker's  license,  559. 
annual  renewals  of  license,  564. 

application  for  license  for  business-chance  broker,  560. 
application  for  license  where  filed,  559. 
application  for  license  for  real  estate  salesman,  562. 
application,  form  of,  559. 
business-chance  broker,  definition,  558. 
barred  from  suing  upon  quantum  meruit  for  services  if  agreement 

not  in  writing,  566. 
cannot  act  in  dual  capacity  without  consent  of  both  principals,  567,  568. 
cannot  collect  commission  before  consummation  of  sale,  570. 
chance  broker  must  procure  license,  558. 
employed  to  sell  property  cannot  become  purchaser  of,  568. 
not  excused  for  fraudulent  conduct,  568. 
commission  agreement,  565. 
commission  agreement,  contents  of,  565. 
commission  agreement  must  be  in  writing  to  satisfy  statute  of  frauds. 

565. 
commission  applies  to  purchase  as  well  as  sale,  565. 
commission  payable  to  broker  must  be  set  up  in  contract,  568. 
complaint  against  broker,  564. 
complaint  against  broker  should  be  verified,  564. 
definition  of,  558. 

dual  capacity  of,  must  have  consent  of  both  principals,  567. 
duties  of  broker,  567. 

duties  of  commission  to  investigate  complaints,  564. 
effect  when  commission  agreement  is  not  in  writing,  565. 
fees  accompanying  annual  renewals  of  license,  564. 
fees  accompanying  applications,  564. 
findings  of  commission  may  be  reviewed  by  supreme  court,  564. 


632  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
holder  of  power  of  attorney  from  owner  need  not  procure  license,  559. 
implied  authority  of  broker,  567. 
liability  for  commission  not  evaded  by  client's  refusal  to  consummate 

sale,  565. 
must  act  for  his  principal  alone,  567. 
not  to  draft  agreement,  3. 
notes  in  payment  of  commission,  570. 
ordinary  authority  of  broker,  567. 
owner  need  not  procure  license,  559. 
promise   by   one   principal   to   pay    commission   to   other   principal's 

broker  void,  568. 
provisions  in  statute  of  frauds  covering,  565. 
real  estate  brokers,  definition  of,  558. 
real  estate  broker  must  procure  license,  559. 
real  estate  salesman,  definition  of,  558. 
real  estate  salesman  must  procure  license,  559. 
receiver  or  trustee  in  bankruptcy  need  not  procure  license,  559. 
regulation  and  licensing,  558. 
rule  governing  knowledge  of  restrictions,  569. 
suspension  or  revocation  of  license,  564. 
termination  of  commission  agreement,  566. 
when  acting  in  dual  capacity  must  disclose  facts,  567. 
when  agreement  void  for  want  of  consideration,  568. 
when  broker  acts  in  dual  capacity  without  knowledge  and  consent 

of  both  principals,  567. 
when  broker's  commission  limited  by  degree  of  success  in  making  bar- 
gain, 570. 
when  broker  has  not  exclusive  agency,  568. 
when  broker  is  procuring  cause  of  sale  or  lease,  569. 
when  broker    may  collect  commission  from  both  principals,  568. 

when  commission  accrues,  566. 
when  commission  earned,  568. 
when  contract  voidable,  568. 

when  defendant  relieved  from  paying  commission,  570. 
when  liable  in  suit  for  accounting  in  case  of  fraud,  567. 
when  notes  in  payment  of  commission  void  for  want  of  considera- 
tion, 570. 
when  vendee  pays  broker's  commission,   570. 

BUILDING  RESTRICTIONS: 
see  "Specific  Performance." 
clouds  on  title  created  by,  249. 

specific    performance,    purchaser    may   enforce,    against    all    in    sub- 
division, 249. 


INDEX  633 

[References  are  to  Pages] 

CAPACITY  OF  PARTIES: 
natural  incapacity,  104. 
mental,  103. 

CAPIAS: 

false  representations,  actions  for,  501. 

CIRCUIT  JUDGE: 

order  made  by,  168. 

CLOUDS  ON  TITLE: 

see  "Abstracts  of  Title,"  "Quieting  the  Title." 

actions  to  remedy,  164. 

assignments  of  land  contracts  constituting,  150. 

assignments  of  land  contracts  causing,  150. 

building  restrictions,  249. 

bills  of  complaint  for  quieting,  see  "Forms,  Index  to." 

certificate  of  sale,  constituting,  123. 

creditor's  interests  creating,  123,  150. 

definition  of,  122. 

defective  acknowledgments  of  married  women  constituting,  123. 

defective  deed  constituting,  123. 

decisions  from  other  states  covering,  122. 

decree  quieting,  see  Index  to  Forms,  181. 

defects  most  common,  constituting,  169. 

defects  of  record  creating,  126. 

easements  constituting,  122. 

execution  sale,  123. 

effect  of  decree  to  quiet,  181. 

equity,  pleading  and  practice  covering,  166,  167. 

forms  of  bill  of  complaint  to  quiet,  182,  183,  186. 

foreclosure  of  mortgage,  147. 

growing  out  of  foreclosure  of  mortgage  by  advertisement,  146. 

how  corrected,  3,  123,  129. 

judgment  constituting,  123. 

CONSENT: 

of  vendor  to  assignment,  of  contract  of  necessity,  346,  356. 

CONSIDERATION  OF  CONTRACT: 
inadequacy  of,  236. 

interest,    taxes    and    repairs,    constituting,    248. 
may  be  proved  by  legal  evidence,  105. 
need  not  be  stated  in  contract,  105. 
one  dollar  constituting,  248. 
Michigan  rule  as  to  adequacy  of,  236. 
personal  service  constituting,  239. 
statutory  provisions  covering,  105. 


634  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

sharp  practice  evidenced  by,  237. 
son's  services  constituting,  247. 
specific  performance  affected  by,  238. 
support  of  parent  constituting,  247. 

CONTRACT: 

see   "Land   Contracts"   and   "Agreements   Preliminary",    "Statute   of 
Frauds." 

CONTRACT  OF  SALE: 

see   "Agreements   Preliminary"   and   "Land   Contracts",   "Statute   of 

Frauds." 
distinction  between   option   contract  and,   576. 

COTENANTS: 

Michigan  rule  governing,  134. 
statute  of  limitations  governing,  135. 

COUNTY  CLERK: 

formerly  register  in  chancery,  168. 

DAMAGES : 

awarding  damages  in  lieu  of  specific  performance,  234,  261,  303  N. 
awarding  damages  in  part  and  specific  performance  as  to  remainder, 

234,  261,   503  N. 
for  fraudulent  representations  concerning  property,  509. 
measure  of,  in  action  by  vendee  growing  out  of  breach  of  contract,  509. 
no  necessity  for  acting  promptly  where  only  damages  sought,  557. 
no  necessity  for  rescinding  where   property   retained   and   damages 

sought,  557. 
rescission  in  part  and  damages  for  remainder,  503  N,  546,  557. 
retaining  property  and  setting  off  damages  against  purchase  price, 

546  to  557  incl. 
sought  by  bona  fide  purchaser,  57. 
special,  when  allowed,  509. 
speculative,  what  is,  509. 
the  rule  when  vendor  acts  in  bad  faith,  509. 
the  rule  when  vendor  acts  in  good  faith,  509. 
void  agreement,  right  to  damages,  48,  56. 
what  constitutes  breach  of  contract,  509. 
when  vendee  is  entitled  to  for  breach,  509. 
when  vendee  not  entitled  to  for  breach,  509. 

DECREE: 

for  forms,  see  "Forms,  Index  to." 
amendable  in  supreme  court  to  conform  to  facts,  259. 
certified  copy  of  shall  be  filed  in  Register  of  Deeds  office  when  quiet- 
ing title  to  lands,  181. 


INDEX  635 

[References  are  to  Pages] 
effect  of  registration,  181. 

may  be  set  aside  by  defendant  not  having  notice,  171. 
may  terminate  and  discharge  liens,  181. 
registration  of  probate  or  chancery  decree,  275. 
shall  determine  the  rights  of  the  parties,  181. 
specific  performance,  259. 
to  defendant  on  cross  bill,  172. 

when  wife  has  not  joined  in  execution  of  land  contract — specific  per- 
formance, 234. 

DEED: 

by  administrator,  executor  or  guardian,  272. 

cancellation  of,  502. 

defects  in,  123,  134. 

delivery  of,  58  N. 

dower  interest  of  wife  in,  147. 

good  and  sufficient  warranty,  meaning  of  term,  121  N. 

in  escrow,  where  should  be  deposited,  57,  249. 

signature  of  wife  to,  147. 

title  through  tax  deed — marketable,  146. 

unrecorded,  144. 

DEFAULT: 

course  open  to  vendor  upon  default  by  vendee,  312  to  343  incl. 

effect  of  first  breach,  244,  312. 

of  what  default  may  consist,  315. 

of  vendee  under  land  contract,  69,  312,  343. 

of  vendor  under  land  contract,  244,  312,  9. 

waiver  of  default,  232,  322. 

DEMURRER: 

in  suits  to  quiet  title,  175. 

sustained  when  bill  of  complaint  fails  to  state  whether  either  party 
is  in   possession,   175. 

DISCHARGE: 

for  form  of  discharge,  see  "Forms,  Index  to." 

of  land  contract  of  record,  112. 

of  ancient  mortgages,  how  obtained,  123,  127,  128. 

penalty  for  refusal  to  execute  discharge  of  land  contract,  112. 

who  shall  execute  discharge  of  land  contract  of  record,  112. 

DOWER: 

as  considertion  for  transfer  of  property,  249. 
contracts  releasing  dower  specifically  performed,  260  N. 
of  widow  of  vendor  in  land  contract,  99. 
of  widow  of  vendee  in  land  contract,  100. 

pre-nuptial  agreements  barring  dower  will  be  specifically  performed, 
260  N. 


636  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 

wife  of  vendee,  no  dower,  100. 

wife  of  vendor  should  execute  land  contract  to  bar  dower,  99. 
wife  of  vendee  need  not  execute  assignment  of  land  contract  except 
in  certain  cases,  100. 

EASEMENT: 

for  forms,  see  "Forms,  Index  to." 

quieting  title  to,  204. 

remedy  in  equity  to  establish,  172. 

when  third  parties  claim,  creates  cloud  on  title,  122. 

EJECTMENT: 

advantages  of,  to  vendor  to  obtain  possession,  324. 

action  by  vendor,  325,  324. 

changes  in  recent  statutes  relating  to,  326. 

contents  of  declaration  in,  327. 

disadvantages  of  remedy  to  vendee,  325. 

declaration  in,  325,  326. 

defendants  in  action  of,  326. 

defendant,  occupancy  of  premises  by,  326. 

fictitious  names  of  parties  in,  326. 

homestead  interests  involved  in,  326. 

judgment,  when  conclusive,  326. 

law,  commenced  at,  326. 

landlord  and  tenant,  327. 

mortgagees  not  proper  parties  in,  326. 

new  trial  not  granted  defendant  in,  as  matter  of  right,  326. 

proceedings  wholly  statutory,  325. 

personal  service  on  defendant,  326. 

proceedings   not   barred   after   10   years'   occupancy   of   premises   in 

absence  of  adverse  possession,  327. 
remedy  involves  legal  right  only,  151,  326. 
remedy  does  not  involve  equitable  interests  or  defenses,  326. 
service,  326. 

vendee  estopped  from  denying  vendor's  title,  328. 
when  mortgagees  must  be  parties  in,  326. 
when  vendee  not  estopped  from  denying  vendor's  title,  329. 
when  vendee  acquires  paramount  title,  329. 
when  vendee  becomes  trustee  for  vendor,  329. 
when  plaintiff  fails  to  join  all  defendants,  327. 

ENCUMBRANCES : 

false  representations  relative  to,  actionable,  494. 
who  assumes,  7,  25. 

EQUITY: 

for  forms  used  in  equitable  actions,  see  "Forms,  Index  to,"  "Equity, 


index  637 

[References  are  to  Pages] 
Pleading  and   Practice,"   "Specific   Performance,"    "Foreclosure   of 
Land  Contracts,"  "Reformation  of  Instruments." 

equitable  estoppel,  specific  performance  granted  because  of,  296,  310. 

fire  insurance,  rule  in  equity,  58. 

inequitable   conduct  of  defendant,   grounds   for  enforcing   void   con- 
tract), 296,  310. 

jurisdiction  in  action  to  quiet  title,  122,  164,  166. 

jurisdiction  in  action  involving  fraud,  52,  502. 

jurisdiction  in  action  involving  mistake,  449,  452. 

jurisdiction  in  action  involving  void  judicial  sale  creating  cloud,  175 

jurisdiction  in  cancellation  of  land  contracts,  502. 

jurisdiction   in   establishing  easement,   172. 

jurisdiction  in  establishing  boundary  line,  incidental,  174. 

jurisdiction  in  establishing  lien  on  property  for  purchase  under  void 
judicial  sale,  175. 

jurisdiction  in  forfeiture  of  land  contracts,  339. 

jurisdiction  in  cases  for  injunctive  relief,  173. 

jurisdiction  in  reformation  of  land  contracts,  449,  452  inch 

jurisdiction  in  restraining  actions  at  law,  173. 

jurisdiction   in   rescission  of  land  contracts,   502. 

jurisdiction  of,  in  specific  performance,  245. 

may  constitute  perpetrator  of  fraud  trustee  for  injured  party,  502. 

no  jurisdiction  in  action  to  quiet  title  if  bill  of  complaint  shows  de- 
fendant in  possession,  166. 

not  available  in  irregular  levy  of  execution,  176. 

relief  denied  when  facts  fail  to  warrant  rescission,  235. 

relief  granted  where  defendant  estopped  by  inequitable  conduct,  296, 
310. 

rule  in  case  of  fire  insurance  pending  closing  of  deal,  58. 

trespass  upon  lands  not  in  possession  of  defendant,  174. 

when  jurisdiction  concurrent  with  courts  of  law,  502. 

when  remedy  will  be  entertained  in,  164. 

when  possession  a  necessary  element  in,  173. 

when  wife  refuses  or  fails  to  join  in  execution  of  land  contract,  234. 

EQUITY  OF  REDEMPTION: 

form  of  decree  for,  see  "Forms,  Index  to." 
time  allowed  in  summary  proceedings,  325,  369. 
what  time  allowed  under  land  contract  sale,  404. 

EQUITY,  PLEADING  AND  PRACTICE: 
see  the  various  equitable  actions, 
changes  in  equity,  pleading  and  practice,  166. 
designation  of  moving  party,  168. 
exhibits  used  in,  may  be  attached  to  pleading.  167. 
judicature  act  relating  to,  166. 
replications  abolished,  167. 
rules  of  supreme  court  relating  to,  166. 


g38  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

ESCROW: 

agreement,  preliminary,  not  necessary,  57. 

form  of  escrow  memorandum  for  the  disposition  of  a  land  contract  in 

escrow,  73. 
requirement  of  statute  of  frauds,  as  to  release,  20. 
when  disposal  of  land  contract  in  escrow  advisable,  57. 

ESTATE  BY   ENTIRETIES: 

heirs  to  take  no  interest  in,  101. 

husband  and  wife  as  vendees  under  land  contract  held  by,  101. 

ESTATE,   CHARACTER  OF: 

see   "Laud    Contracts,"   "Husband    and   Wife,"    "Vendee,"   "Vendor." 
"Dower." 

ESTOPPEL: 

equitable,  from  forfeiture  for  violation  on  non-assignment  clause,  346. 
relating  to  ejectment  proceedings,  328. 
relating  to  foreclosure  of  vendor's  lien,  406. 
relating  to  waiver,  346. 

EXPECTANT  INTERESTS: 

law  looks  with  disfavor  upon  sale  of,  116. 
requirements  for  enforcement  of,  116. 
sale  of,  116. 

EVIDENCE: 

see  "Foreclosure  of  Land  Contract,"  "Forfeiture,"  "Fraudulent  Mis- 
representation," "Land  Contracts,"  "Quieting  the  Title,"  "Reforma- 
tion of  Instruments,"  "Specific  Performance." 

abstract  admissible  to  show  character  of  title,  120  N. 

affidavits  when  prima  facie,  129  N. 

adverse  possession  of  unoccupied  property  evidence  to  establish, 
136  N. 

burden  of  proof,  165,  169,  174. 

conversation  between  defendant's  agent  and  his  attorney  inadmissible, 

259. 
defective  title,  proof  of,  122  N.  11. 
false  representations  contained  in  circulars,  499. 
land  contracts,  111. 
memoranda,  exclusion  of,  in,  260. 
miscellaneous  decisions,  259. 

mortgage,  evidence  necessary  to  prove  discharge  of  mortgage,  125. 
parol,  23,  449,  450. 

proof  of  document  and  how  made,  111. 

parol  testimony  admissible  to  establish  mistake  in  land  contract,  450. 
reformation  of  land  contract,  452. 
specific  tax  must  be  paid  before  contract  is  admissible,  115. 


INDEX  639 

[References  are  to  Pages] 

tax  deed  not  of  itself  prima  facie,  166. 

trial  court  superior  opportunity  to  determine  credibility  of  witnesses, 
439. 

EXECUTION  OF  LAND  CONTRACTS: 
certificate  of  sale  under,  123. 
curative  statutes  as  to  defects,  110. 
effect  of  failure  of  wife  to  sign,  234. 
effect  of  failure  to  have  same  witnessed,  110. 
effect  of  failure  to  have  same  acknowledged,  105,  110,  111. 
remedy  when  defective,  110. 
statutory  requirements  of,  104. 
witness  to  vendor's  signature,  104. 
wife  need  not  join  in  assignment  to  bar  her  dower,  100. 

FIRE: 

before  possession  and  after,  58. 
fires  before  and  after  possession,  58. 
insurance  collected  by  whom,  58. 
loss  sustained  by  whom,  58. 

FIVE  YEAR  STATUTE: 

effect  of  void  tax  deed,  133. 

purpose  of  statute,  133. 

sale  by  executor  of  administrator,  133. 

sale  by  guardian  or  testamentary  trustee,  133. 

sale  by  sheriff  or  other  officer,  133. 

FORECLOSURE  OF  VENDOR'S  LIEN: 

actions  waived  by  pursuing  foreclosure,  406. 

actions  at  law  for  purchase  price  concurrently  with,  406. 

advantages  of  remedy,  324. 

advertising  property  for  sale,  404. 

affidavit  of  posting  notices  for  sale,  413. 

briefs  and  pleadings  used  in  late  Michigan  cases,  41S. 

circuit  court  commissioner  report  of  sale,  414. 

circuit  court  commissioner  statement  of  fees,  etc.,  417. 

commissioner's  deed,  411. 

concurrent  with  action  at  law  for  purchase  price  of  land  contract,  406. 

decree  of  foreclosure,  411. 

defendants,  who  should  be,  405. 

disadvantages  of  remedy,  324. 

foreclosure  proceedings  not  governed  by  mortgage  statutes,  404. 

forms  pertaining  to  this  action,  see  "Forms,  Index  to." 

lessee  of  vendee  should  be  made  party,  405. 

nature  of  action  of,  403. 

notice  of  sale  by  circuit  court  commissioner,  413. 

nature  of  vendor's  lien,  403. 


640  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
of  vendee's  lien,  405. 
parties  to  the  action,  405. 

plaintiff  must  not  be  guilty  of  breach  to  maintain  action,  405. 
pleadings  and  briefs  used  in  late  Michigan  cases  in,  418. 
receipts  from  circuit  court  commissioner,  418. 
statute  of  limitations  barring,  439. 
time  allowed  to  redeem,  404. 
vendee's  interest,  how  divested,  404. 
vendee's  lien,  405. 

vendor's  claim  under  land  contract  merely  a  money  debt,  403. 
vendor's  interest  in  contract  an  equitable  charge  on  the  land,  403. 
vendor's  interest  in  land  contract  not  a  legal  estate,  403. 
vendor  in  land  contract  holds  legal  title,  403. 

FORFEITURE: 

for  forms,  in  relation  to,  see  "Forms,  Index  to." 

actions  in  ejectment  after,  by  vendor  or  vendee  against  third  persons, 

329. 
actual  damage  sustained  under,  315. 
attitude  of  Michigan  supreme  court  relative  to,  315. 
assignment  of  contract  does  not  release  vendee,  353. 
advantages  taken  by  vendor  over  vendee  in,  353. 
basis  for  determination  in  cases  involving,  353. 
clause  relating  to,  in  land  contract,  68. 
courts,  criterion  in  granting  relief,  344. 
contracts  containing  non-assignment  clause,  346. 
damages  stipulated  in  contract,  315. 
damages  sustained  under,  315. 
decree  of,  342,  397. 
ejectment  or  summary  proceedings  must  be  preceded  by  notice  of 

forfeiture,  319. 
effect  of  demand  for  payment  after  declaration  of,  322. 
effect  of  waiver  of,  322. 
ejectment  after,  324. 

estoppel,  after  verbal  consent  to  assignment,  347. 
effect  of  final  judgment — possessory  proceedings,  338. 
effect  of  registration  of  writ  of  restitution,  339. 
enforcement  of,  315. 
definition  of,  315. 

forfeiture  clause  strictly  construed,  346,  352. 
forfeiture  and  penalties,  how  regarded,  315. 
for  violation  of  non-assignment  clause,  346,  353. 
hateful  to  the  law  of  Michigan,  315,  339. 
how  effected,  339. 

interest  of  vendor  under  land  contract,  personal  property,  354. 
incidents  in  relation  to  proceedings,  331. 
jurisdiction  of  equity  in,  339. 


INDEX  641 

[References  are  to  Pages] 
leases  and  relation  to  assignment  clause,  347. 
liquidated  damages  under,  315. 

Michigan  decisions  relating  to  non-assignment  clause,  349. 
mere  breach  does  not  constitute,  315. 
notice  of,  must  be  given,  319. 

non-assignment  clause,  violation  of,  as  ground  for,  346. 
non-assignment  clause  against  public  policy,  353. 
non-assignment  clause  not  against  public  policy,  353. 
necessity  of  tender  for  relief  from,  368. 
necessity  of  tender,  368. 
not  sustained,  cases  illustrating,  356. 
purpose  of  decree  of,  339. 
pleadings  and  briefs   in  late  Michigan  cases   involving  relief  from, 

372,  384. 
penalty  under,  315. 
plea  in  summary  proceedings,  331. 
proceeding  to  have,  decreed,  339. 
provisions  of  contract  relative  to,  312. 
public  policy,  attorney  fees,  notes,  mortgages,  356. 
public  policy,  definition  of,  356. 
relief  from,  bill  of  complaint,  369. 

relief  from,  after  final  judgment  by  circuit  court  commissioners,  369. 
relief  from,  necessity  of  tender,  368. 
relief  from,  granted,  356,  363. 
relief  from,  denied,  363  to  368. 
repossession  by  vendor,  declaration  of,  320. 
return  on  appeal,  337. 

restraint  against  alienation  of  real  property,  355. 
service  where  defendant  cannot  be  found,  332. 
steps  in  appeal  from  circuit  court  commissioners,  333. 
summary  proceedings  by  vendor  for  possession,  330. 
summary  proceedings  steps,  324. 
sustained,  cases  illustrating,  363,  367. 

time  allowed  to  redeem,  in  relief  from,  368,  369,  356  to  361. 
time  allowed  to  redeem,  summary  proceedings,  369. 
validity  of  non-assignment  clause,  346. 

vendee  is  equitable  owner  of  real  estate  under  land  contract,  354. 
vendor  guilty  of  breaches  of  contract,  347. 
vendor  has  right  to  select  his  vendee,  353. 
vendor  holds  title  as  security,  354. 

vendor's  conduct  constituting  waiver  of  non-assignment  clause,  347. 
vendors'  interest  analogous  to  interest  of  mortgagee,  354. 
vendor's  waiver  of,  347. 

voluntary  surrender  of  possession,  after,  324. 
waived  by  filing  bill  to  foreclose  vendor's  lien,  324. 
waiver  of  by  oral  agreement,  322. 


642  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

waiver  of,  or  default,  322. 

waiver  of,  by  conduct,  322. 

waiver  of,  or  default  by  foreclosure,  347. 

waiver  of  notice  of,  320. 

when  assignment   is  not  accompanied   by   change   of   possession   or 

ownership,  non-assignment  clause  is  not  violated,  347. 
when  contract  contains  forfeiture  clause,  345. 
when  courts  of  equity  grant  relief,  344. 

when  defendant  has  made  great  improvements,  paid  taxes,  etc.,  344. 
when  forfeiture  results  in  great  loss  to  vendee,  344. 
when  forfeiture  results  in  great  loss  to  vendor,  344. 
when  guardians  may  exercise,  317. 
when  legally  effected,  339. 

when  litigation  involving  title  is  concerned,  344. 
when  notice  of,  not  required,  320. 
when  one  of  parties  dies,  317. 

when  one  of  parties  has  been  adjudged  incompetent,  317. 
when  vendee's  laches  are  not  great,  344. 

when  vendor  accepts  payments  from  assignee,  waiver  of  right  of,  322. 
when  vendor  commences  foreclosure  against  vendee  and  assigns,  347 
when  vendor  gives  verbal  consent  to  assignment,  347. 

FRAUDULENT   MISREPRESENTATIONS: 

see  "Damages,"  "Equity,"  "Index  to  Forms,"  relating  to,  "Rescission," 

"Reformation  of  Instruments,"  "Specific  Performance." 
actions  at  law,  539  to  557. 
actions  in  equity,  523  to  539. 
actions  on  the  covenants  or  warranties,   504. 
acts  of  defendant  giving  rise  to  action  must  be  averred,  512. 
actions  for,  not  assignable,  173. 

allegations  in  declaration  constitute  separate  paragraphs,  520. 
answer  or  counterclaim,  514. 
at  law,  actions  for,  503. 
bill  of  complaint,  contents  of,  512,  513. 
bill  of  complaint,  form  of,  see  "Index  to  Forms." 

bill  of  complaint  should  disclose  when  fraud  was  discovered,  513,  514. 
briefs,  covering,  see  "Briefs  Used  in  Late  Michigan  Cases,"  infra, 
cancellation  of  contract,  503. 
cancellation  of  deed,  502. 
concealment  of  encumbrance,  494. 

constituting  value  of  land  as  equitable  lien  thereon,  503. 
constituting  perpetrator  of  fraud  trustee  for  injured  party,  502. 
copy  of  deed  or  contract  should  be  attached  to  bill  of  complaint  as 

exhibit,  513. 
copy  of  written  instruments  should  be  attached  to  declaration,  520. 
court  of  law  cannot  cancel  or  rescind  contract  or  deed,  503. 


index  643 

[References  are  to  Pages] 

cross  bill  in  suit  for  cancellation  of  deed  cannot  be  based  on  breach  of 

covenants,  warranty,  or  encumbrance  in  the  deed,  514,  515. 
for  forms,  see  "Index  to  Forms." 
damages,  see  "Damages,"  recovery  of. 
damages  for  breach  of  contract,  509. 
damages  because  of,  509. 
damages  to  which  purchaser  is  entitled,  509. 
damages  to  which  vendor  is  entitled,  509. 
declarations,  519. 
declaration  in  action  at  law,  520. 

deed  or  contract  need  not  be  incorporated  in  bill  of  complaint,  513. 
defendant's  defenses  must  not  be  inconsistent  with  each  other,  514. 
defendant  may  counterclaim,  514. 
delay  must  be  brief  after  discovery  of  fraud,  505. 
delay  need  not  be  brief  in  action  at  law,  557. 
description  of  instruments,  513. 

disposition  of  rents  and  use  of  property  in  rescission  of  contract,  508. 
equity  will  rescind  because  of  defective  title,  493. 
executed  contract  or  sale  of  real  estate  in  absence  of  fraud,  504. 
exhibits,  513. 
forms  of  bill  of  complaint  and  declaration,  see  "Forms." 

FRAUDULENT  MISREPRESENTATIONS  IN  PARTICULAR: 
concealment  of  encumbrance,  494. 
concerning  annual  expense,  497. 
concerning  boundaries,  495. 
concerning  condition.  499. 
concerning  income,  497. 
concerning  improvements,  491,  499. 
concerning  encumbrances,  494. 
concerning  location,  495. 
concerning  quality,  499. 
concerning   title,   interest,   493. 
concerning  value,  497. 
concerning  condition  of  soil,  499. 
distinction  between  opinions  and  facts,  490. 
essential  elements  of,  487. 
expression  of  opinion,  490. 
false  representations  as  to  legal  rights,  489. 
general  principles,  487. 
"Ignorance  of  the  law  no  excuse,"  489. 
made  by  vendor's  agent,  489. 
materiality  of  representations,  489. 
must  be  material  to  transaction,  489. 

promises  as  to  improvements  or  use  of  real  property,  491,  499. 
rescission  of  land  contract,  because  of,  489. 
representations  as  to  matters  of  law,  489. 


644  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
representations  as  to  quantity,  boundaries  or  location,  495. 
representations  as  to  quantity,  condition  and  improvement,  499. 
representations  as  to  title  interest,  493. 
representations  as  to  value,  497. 
when  silence  constitutes,  491. 

writ  of  Capias  ad  Respondendum,  because  of,  501. 
general  rule  governing  tender  in  rescission  for  fraud,  executory  con- 
tract, 508. 
general  rule  governing  remedies  of  vendor,  510. 
general  rule  governing,  512. 
general  requirements  of  pleadings,  512,  519. 
injuries  suffered  by  breach  of  condition  subsequent,  504. 
jurisdiction  of  equity,  502. 
Michigan  circuit  court  rule  governing,  513. 
must  be  no  adequate  remedy  at  law  when  relief  is  sought,  in  equity, 

512. 
measure  of  damages,  509. 
measure  of  damages  in,  see  "Damages." 
measure  of  damages  in  action  by  vendee  growing  out  of  breach  of 

contract,  509. 
multiplicity  of  suits,  503. 
new  rules  and  law  covering,  519. 

no  necessity  for  acting  promptly  when  rescission  not  sought,  557. 
no  necessity  for  acting  promptly  where  only  damages  are  sought,  557. 
non-disclosure  or  concealment,  494. 
no  necessity  for  rescinding  where  property  is  retained  and  damages 

sought,  557. 
offer  to  restore  or  do  equity,  508,  514. 

offer  to  restore  equity,  must  be  set  up  in  bill  of  complaint,  514. 
plaintiff  must  not  be  guilty  of  laches,  505. 

plaintiff  waives  question  of  fraud  by  retaining  possession,  507. 
plaintiff   may    show   his    delay    due    to    deceitful    representations   of 

defendant,  506. 
pleadings  and  briefs  used  in  late  Michigan  cases,   (Equity),  539. 
pleadings  and  briefs  used  in  late  Michigan  cases,  (Law),  546. 
Pleadings  and  Briefs,  List  of  Cases: 

Banski  v.  Michalski  (204  Mich.  15),  involving  fraudulent  misrep- 
resentations (Equity),  522. 
Barnhardt  v.  Hamel  (207  Mich.  232),  involving  fraudulent  misrep- 
resentations  (Law),  546. 
Lian  v.  Bradford  (204  Mich.  172),  involving  fraudulent  misrepre- 
sentations (Law),  539. 
profert  not  required,  513. 
requirements  of  person  seeking,  508. 

remedy  at  law  does  not  defeat  agreed  consideration  in  equity,  503. 
rescission  of  contract,  487. 


INDEX  645 

[References  are  to  Pages] 

restoration   of  status   quo,   508. 

remedies  by  action  at  law,  503. 

requisites  of  declaration,  519. 

separate  counts  in  declaration,  522. 

suit  for  damages  in  action  at  law,  503. 

time  limit  for  rescission,  505. 

time  in  which  action  may  be  brought,  governed  by  circumstances,  505 

time  to  rescind,  505. 

waiver  of  right  to  rescind  by  acts  or  assertions  of  ownership,  507. 

when  remedy  at  law  is  adequate  equity  will  not  interfere,  504. 

when  remedy  at  law  is  not  adequate,  502. 

when  bill  in  equity  for  cancellation  of  conveyance  is  not  the  proper 

remedy,  504. 
when  delayed  action  is  not  barred  by  laches,  506. 
when  delayed  action  for  rescission  operates  unfairly  to  defendant  and 

confers  greater  benefit  upon  plaintiff,  506. 
what  answer  and  cross  bill  should  contain,  514. 
when    false   statement   is   equally   within   knowledge    of   vendor,   no 

basis  for  relief,  510. 
when  vendee  conceals  material  facts,  511. 

when   vendee  misrepresents   property   given   in   exchange,   511. 
when  equity  will  relieve  vendor  at  instance  of  vendee's  non-disclosure 

and  concealment,  511. 
when  concealment  does  not  constitute  fraud,  511. 
waiver  of  right  to  rescind  by  acts  or  assertions  of  ownership,  507. 
when  equity  will  not  interfere,  503. 
when  equity  will  not  rescind  contract,  504. 
when  vendor  is  insolvent,  503. 

when  subject  matter  is  only  security  for  purchase  price  paid,  503. 
when  contract  for  sale  of  land  has  been  executed  and  delivered  to 

vendee,  508. 
when  person  seeking  rescission  for  fraud  must  restore  possession,  50S. 

FRAUD  AND  MISTAKE: 

see  "Fraudulent  Misrepresentations,"  "Reformation  of  Instruments," 
"Rescission,"  and  "Specific  Performance." 

GUARDIAN: 

may  convey  real  estate  pursuant  to  land  contract,  275. 

HEIRS  OF  DECEASED  PERSONS: 

affidavit  for  substituted  service,  in  suits  against,  171. 
appointing  guardian  ad  litem,  in  suits  against,  171. 
bill  of  complaint,  to  join  unknown  heirs,  177. 
decree,  form,  in  suits  against,  179. 
form  of  averment,  in  suits  against,  177. 
Michigan  rule  covering,  134. 


646  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 

rights  of,  relating  to  adverse  possession,  131. 
specific  performance  by,  249. 
unknown  heirs  as  defendants,  170. 

HUSBAND  AND  WIFE: 

see  "Land  Contracts,"  "Agreements  Preliminary,"  "Dower,"  "Vendor," 
"Vendee." 

Awarding  damages  against  husband  for  failure  of  wife  to  join  in  con- 
tract, 234. 

bill  of  complaint  to  quiet  title  may  be  filed  by  wife  when  levy  is  made 
on  homestead,  176. 

character  of  interest,  when  vendees  are,  under  land  contract,  101. 

estate  by  entireties,  when  vendees  are,  101. 

mutual  releases  between,  upheld,  103. 

specific  performance  by  husband  against  wife,  249. 

specific  performance  against  husband  where  wife  fails  to  join,  234. 

when  wife  of  vendee  must  join  in  assigning  contract,  100. 

when  both  named  as  vendees,  survivor  takes  all,  101. 

where  property  is  homestead,  100. 

wife  need  not  execute  assignment  of  contract  to  bar  her  dower,  100. 

INEQUALITIES  OF  EQUITIES: 

see  "Specific  Performance,"  "Equity." 

when  caused  by  unforeseen  difficulties  in  enforcement  of  terms  of 

contract,  237. 
where  defendant  acted  under  pressing  circumstances,  238. 
where  defendant  was  old  and  poverty  stricken,  238. 
where  defendant  was  inexperienced,  238. 

INTEREST  IN  REAL  ESTATE  UNDER  LAND  CONTRACT: 

see  "Vendor,"  "Vendee,"  "Husband  and  Wife,"  "Dower,"  "Land  Con- 
tracts." 
described  in  agreement,  3. 
dower  of  widow  in  vendee's  interest,  100. 
dower  of  widow  in  vendor's  interest,  100. 
when  title  in  administrator,  99. 
when  title  in  heirs  of  decedent,  99. 

INTEREST  ON  MORTGAGE: 
when  assumed  by  vendee,  9. 
when  not  to  exceed  interest  under  contract,  9. 

INTOXICATION: 

when  basis  for  denial  of  specific  performance,  234. 
when  induced  by  plaintiff,  234. 
when  not  induced  by  plaintiff,  234. 

INSURANCE: 

effect  of  change  of  ownership,  58. 


index  647 

[References  are  to  Pages] 
precautions  relating  to  policies  of,  9. 
vendee's  obligation,  7,  9. 
vendee's  interest  should  be  covered  by,  9. 

INTRODUCTORY  STATEMENT,  1. 

LACHES: 

see  "Fraudulent  Misrepresentation,"  "Rescission,"  "Specific  Per- 
formance," 

after  discovery  of  fraud,  505. 

defense  in  action  for  specific  performance,  232. 

delay  must  be  brief  after  discovery  of  mistake  except  in  certain  cases, 
505. 

delay  unimportant,  in  action  for  damages,  557. 

minor  or  incompetent  not  guilty  of,  232. 

relating  to  rescissions  of  contract,  505. 

when  delayed  action  not  defense,  557. 

when  delayed  action  not  barred  by,  557. 

when  not  injurious  to  other  party,  506. 

when  relief  in  equity  precluded  by,   505. 

when  warranted  by  circumstances,  232. 

LAND  CONTRACTS: 

see  "Husband  and  Wife,"  "Dower,"  "Vendor,"  "Vendee,"  "Agreements 
Preliminary,"  "Foreclosure  of  Land  Contract,"  "Forfeiture,"  "Fraud- 
ulent Misrepresentation,"  "Options,"  "Reformation  of  Land  Con- 
tract," "Specific  Performance,"  "Statute  of  Frauds." 

for  forms,  see  "Forms,  Index  to." 

acknowledgment  and  registration  of,  105. 

acknowledgment  in  other  states  or  territory,  108. 

acknowledgment  of,  when  executed  in  foreign  country,  107. 

action  at  law  to  recover  purchase  price  under,  312. 

ambiguity  of  terms,  232. 

assignments  of,  89,  91,  257,  346. 

authentication  of,  when  executed  outside  of  state,  108. 

basis  for  computing  specific  tax  on,  116. 

breach  of,  effect  of  first  substantial,  244,  312. 

capacity  of  parties  to  execute,  103. 

certified  copy  of.  as  evidence,  111. 

consideration,  238,  236,  105. 

constructive  notice  of,  where  one  in  possession,  114. 

compliance  with  statute  of  frauds,  12. 

corresponding  rights  of  parties  under,  235. 

covenants  against  assignments  contained  in,  346. 

death  of  parties  to,  272. 

defectively  executed,  curative  statutes,  110. 

defendant's  relief  in  forfeiture  of,  312. 

defensive  measures  available  to  vendee  in  forfeiture  of,  312. 


648  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

defective  forms  of,  74. 
discharging  of  record,  112. 
disposal  of,  in  escrow,  57. 
dower  interest  of  wife  of  vendor  in,  234. 
dower  interest  of  wife  of  vendee  in,  100. 
effect  of  vendee's  voluntary  surrender  of,  312. 
effect  of  intoxication  of  parties  when  executing,  234. 
ejectment  to  obtain  possession  of  land  covered  by,  324. 
enforcement  of,  in  probate  court,  273. 
equitable  lien  on  premises  for  agreed  value,  503. 
estoppel  of  vendee  to  deny  vendor's  title,  328,  329. 
excludes,  preliminary  agreements,  see  "Agreements  Preliminary." 
executed  outside  of  state,  108. 
execution  of,  statutory  requirements,  104. 
executory,  238. 

foreclosure  of  vendor's  lien  under,  312. 
forfeiture  clauses  in,  312. 
forfeiture  of,  312,  343. 
form  of  acknowledgment,  107. 
forms  of,  see  "Forms,  Index  to." 

husband  and  wife,  character  of  estate  as  vendees,  101. 
improvements  in  property  covered  by,  235,  358. 
inadequacy  of  consideration,  236. 
incapacity  of  parties  to  execute,  238. 
inequitable  terms,  effect  of,  237. 

inequitable  conduct  of  defendant,  grounds  for  enforcing,  296,  310. 
inequities  under,  effect  of,  237. 
intervention  of  rights  of  third  parties,  257. 
intoxication  of  parties  to,  effect  of,  234. 
lien  for  payments  due  vendor,  under,  117,  403. 
lien  on  premises  for  agreed  price,  503. 
mistake  by  draftsman  in  writing,  449. 

mistake  or  fraud  basis  for  denial  of  specific  performance  of,  235. 
mistake   or   fraud   of   defendant   grounds   for   granting   specific   per- 
formance, 296,  310. 
mutuality  of  parties  to,  244. 
nature  of  foreclosure  of,  312. 

nature  of  estate  where  vendees  are  husband  and  wife,  101. 
nature  of  estate  created  by,  98. 
neutralization  of  equities  under,  234. 
non-assignment  clause,  violation  of,  346. 
notice  of  contract,  possession  under  is,  114. 
notice  of  forfeiture  of,  319. 
personal  service  as  consideration  for,  238. 
possession  by  vendee  constructive  notice  of  contract,  114. 
possessory  actions  to  regain  premises,  312. 


INDEX  649 

[References  are  to  Pages] 
precautions  necessary  in  execution  of,  9. 
provisions  of,  in  general,  3,  7,  8,  12,  24. 
purchase  price  under,  lien  for,  117. 
recovery  of  purchase  price  under,  by  vendor,  235. 
relief  from  forfeiture,  325,  404. 
reformation  of,  450,  454. 

registration  of,  when  property  lies  in  two  or  more  countries,  113. 
remedies  available  to   vendor,   under,   312. 
remedy  for  enforcement  of,  227. 
remedies  in  case  of  breach,  312. 

remedies  open  to  plaintiff  after  declaration  of  forfeiture,  312. 
repossession  of  premises  under,  312. 
requisite  of  land  contract,  228. 
sale  of  expectant  interests  under,  116. 
specific  performance  of,  312. 

specific  performance  of,  by  vendor  against  vendee,  235,  312. 
specific  performance  of  (Michigan  rule),  235,  312. 
specific  performance  not  compelled  as  to  dower,  234. 
specific  tax  on,  114. 

status  of,  in  event  of  death  of  parties  to,  272. 
status  of,  in  event  of  mental  incapacity,  272. 
statutory  requirements  of  execution  of,  104. 
suspended  payments  due  under,  9. 
unfair,  oppressive,  or  inequitable,  237. 

vendor's  equitable  lien  for  unpaid  purchase  price  under,  117. 
vendor's  lien  and  foreclosure  of,  312. 
vendor's  interest  under,  9. 

vendor's  title  need  not  be  marketable  at  time  of  sale,  146. 
when  bargain  is  inequitable,  235. 
when  consideration  for,  is  personal  service,  238. 
when  contract  is  executory,  238. 
when  courts  will  enforce,  227. 

when  fraud  or  mistake  not  sufficient  to  rescind,  235. 
when  incapacity  of  parties  exists,  238. 
when  inequities  exist  under,  237. 
when  land  is  outside  the  state,  235. 
when  non-enforceable  but  performed  by  plaintiff.  238. 
when  personal  service  as  consideration  has  been  performed.  238. 
when  plaintiff's  promise  is  indefinite,  238. 
when  silent  as  to  sort  of  title,  121. 
when  unfair,  oppressive  and  inequitable,  237. 
when  vendees  are  husband  and  wife,  joined  with  others  in,  102. 
wife  of  vendee,  no  dower  interest  in,  100. 
wife's  failure  to  join  in  execution  of,  234. 

LANDLORD  AND  TENANT: 

Forfeiture  of  lease  under  non-assignment  clause,  347. 


650  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 

LAYMEN  AND  LEGAL  INSTRUMENTS: 
should  not  draft  land  contract,  6. 

LEASE: 

forfeiture  of,  under  non-assignment  clause,  347. 

when  defect  in  title  created  by,  123. 

when  exceeding  one  year,  requirements  of,  13. 

LEGAL  DISABILITIES : 

statutory  provisions  for  those  under,  103,  131. 

LIENS : 

mechanic's,  where  title  held  under  land  contract,  117,  118. 
precautions  covering  mechanic's  liens,  10. 

to  what  lien  attaches,  when  title  held  under  land  contract,  117,  118. 

i 

see  "Liens  on  Real  Estate." 
vendor's  lien,  117,  119,  403. 

LIENS  ON  REAL  ESTATE: 

assignment  and  enforcement  of,  117. 

how  affected  by  bona  fide  purchaser,  117. 

not  confined  to  sale  of  legal  or  fee  title,  117. 

vendor's  see  "Vendor's  Lien." 

when  agreed  price  of  premises  constitutes,  503. 

when  created  by  mortgage,  117. 

LIFE  ESTATE,  59. 

LOSS: 

insurance  covering,  58. 

preliminary  agreement  relative  to,  2. 

sustained  before  possession  given,  58. 

sustained  after  possession  given,  58. 

when  caused  by  fire,  58. 

when  sustained  by  vendee,  58. 

MARKETABLE  TITLES: 

see  "Titles"  quieting  the  title. 

MARRIED  WOMEN. 

see    "Acknowledgments,"    "Affidavits,"    "Dower,"    "Parties,"    "Land 
Contracts." 

MECHANIC'S  LIENS: 
see  "Liens." 

MERCHANTABLE  TITLES: 
see  "Titles." 

MEMORANDUM  OF  AGREEMENT: 

see  "Agreements  Preliminary,"  "Statute  of  Frauds." 


INDEX  651 

[References  are  to  Pages] 
MENTALLY  INCOMPETENT: 
capacity  of  parties,  103. 
effect  of  inequity,  237. 
statutory  provisions  concerning,  104. 
when  defendant  is,  237. 

MICHIGAN  SECURITIES  COMMISSION: 

complaints  against  brokers  considered  by,  564. 
licenses  to  brokers,  issued  by,  554. 
supreme  court  may  review  finding  of,  564. 

MINORS: 

protection  of,  concerning  property  interests,  131. 

when  action  may  be  brought  by,  148. 

when  not  guilty  of  laches,  232. 

when  specific  performance  granted  to,  232. 

MISTAKES: 

see  "Specific  Performance,"  "Rescission  of  Contract,"  "Reformation 
of  Instruments." 

MISTAKE  AND  FRAUD: 

see  "Specific  Performance,"  "Fraudulent  Misrepresentations." 

MORTGAGE: 

assumed  by  vendee,  10. 

certificate   of   discharge   of  ancient,   128. 

defective  title  growing  out  of,  146. 

discharge  of  ancient  mortgages,  128. 

executed  by  vendor  after  sale,  7. 

failure  to  make  interested  persons  parties  to  suit  for  foreclosure  of, 

defect  In  title,  147. 
foreclosure  of,  by  advertisement,  146. 
interest  of  mortgagee  in  insurance,  10. 
lien  created  by,  superior  to  vendee's  interest,  7. 
petition  for  discharge,  see  "Forms,  Index  to." 
renewal  of,  7. 

when  limited  to  stated  amount,  7. 
when  power  of  sale  not  contained  in,  146. 
when  vendee  may  pay,  7,  9,  25. 

MUNICIPAL  CORPORATIONS: 
adverse  possession  by,  143. 

MUTUALITY  OF  CONTRACT: 

application  of,  to  option  contracts,  244. 
application  of,  to  option  unilateral  contracts,  244. 
contract  signed  by  one  party  only,  244. 
exceptions  to  doctrine  of,  244. 


652  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 

Michigan  doctrine  of,  244. 
specific  performance,  244. 
test  of,  244. 

NATURE  OF  ESTATE  CREATED  BY  LAND  CONTRACT: 
at  law,  title  in  vendor,  98. 
in  equity,  title  in  vendee,  98. 

interest  of  vendee  at  death  passes  as  real  estate,  99. 
interest  of  vendor  at  death  passes  as  personal,  99. 
where  husband  and  wife  as  vendees  joined  with  others,  102. 
where  spouse  of  vendee  dies,  101. 

NON-ASSIGNMENT  CLAUSE: 

forfeiture  of  contract  for  violation,  346. 
substitute  for,  8. 

NOTICE: 

actual  possession,  notice  of  holder's  interest,   114. 

necessity  of,  before  ejectment,  or  declaring  forfeiture,  319. 

of  adverse  possession,  136,  142. 

of  assignment,  7,  89,  91. 

of  election  to  terminate  contracts  for  default,  319. 

of  forfeiture,  319,  320,  324. 

of  forfeiture  of  land  contract,  319. 

of  forfeiture  clause,  favorable  to  vendor,  68. 

of  forfeiture  to  cotenant,134. 

of  petition  in  probate  court  for  specific  performance,  273,  274. 

possession  by  tenant  constitutes  notice  of  landlord's  rights,  114. 

signs  constituting,  137. 

waiver  of,  in  event  of  foreclosure,  320. 

OPTION  CONTRACTS: 

advance  payment  to  be  returned  insufficient  to  support,  574. 

acceptance  by  tender  in  chancery,  587. 

acceptance  of,  577,  578,  587. 

acceptance  of  offer,  574,  587. 

action  for  breach  arising  under,  581. 

against  whom  enforceable,  581. 

assignability  of,  577. 

binding  offer  and  enforcement  of,  239. 

comes  within  statute  of  frauds,  573,  575. 

consideration   for  option   distinct  from   price  of  land,   574. 

consideration  necessary  to,  574. 

consideration  may  be  applied  on  purchase  price,  574. 

consideration  supporting,  239. 

damages  for  breach  of,  581. 

deduction  of  encumbrance  from  purchase  price,  580. 

definition  of,  572. 


INDEX  653 

[References  are  to  Pages] 

discharge,  578. 

distinction  between  offer  and  option,   574. 

distinguished  from  contract  of  sale,  576,  587. 

distinguished  from  agency,  576. 

doctrine  of  mutuality,  244. 

effect  of  election  or  exercise,  579. 

effect  of  election  by  optionee,  581. 

effect  of  lack  of  mutuality,  583. 

executory  contract  of  sale  arising  from,  580. 

expiration  of,  578. 

failure  to  specify  time  does  not  invalidate,  573. 

forms  of,  573. 

formal  requisites  of,  573. 

from  owner  to  broker,  576. 

not  a  sale  of  land,  572. 

notice  of  election  under,  580,  581. 

notice  of  forfeiture,  not  required  on  expiration  of,  578. 

payment  and  tender,  579. 

price  must  be  sufficient  under  equitable  rule,  239. 

purchasers  for  value  without  notice  of,  581. 

purchase  price,  tender  of,  579. 

rescission  of,  by  both  parties,  578. 

remedies,  581. 

revocation  of,  578. 

revocation  when  operative,  578. 

sale  of  land  under,  577. 

specific  performance,  581. 

tender   of   consideration   for,    239. 

terms  of  and  manner  of  exercise,  579. 

time  of  exercising,  577. 

vests   no  title,   572. 

when  $1.00  sufficient  consideration  to  support,  574. 

when  contract  becomes  binding,  582. 

when  consideration  need  not  be  expressed,  575. 

when  followed  by  land  contract,  239. 

when  heirs,  devisees  and  representatives  are  liable  under,  581. 

when  not  assignable,  577. 

when  option  from  owner  to  broker  terminated,  566. 

when  optionee  abandons  his  rights  under,  579. 

when  optionor  obtains  enforceable  rights  under,  581. 

when  tender  of  purchase  price  may  be  dispensed  under,  579. 

when  third  parties  liable  under,  581. 

when  specific  time  not  stated,  577,  578. 

when  there  are  two  or  more  vendors,  23. 


654  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
ORAL  AGREEMENT  TO  SELL  REAL  ESTATE: 

no  remedy  at  law  when  within  statute  of  frauds,  56. 

offer  and  acceptance,  20. 

part  performance  of,  50. 

performance  of,  by  vendee,  246. 

specific  performance  of,  by  heirs  of  vendee,  249. 

when  binding  under  statute  of  frauds,  20. 

when  enforceable,  12,  56,  246. 

when  within  statute  of  frauds,  56. 

ORAL  AGREEMENT  OF  WAIVER,  322. 
OWNERSHIP,  58. 

outstanding  tax  titles,  see  "Tax  Titles." 

PAROL  AGREEMENT: 

see  "Oral  Agreement  to  Sell  Real  Estate." 

PAROL  EVIDENCE: 
affecting  lease,  23. 
when  admissible,  23. 
when  not  admissible,  23. 
when  required,  23,  29. 

PARTNERSHIP  CONTRACTS,  16. 
PAVING: 

who  shall  pay  for,  3. 

PENALTIES: 

stipulation  for,  attorney's  fees,  316. 
stipulation  for,  in  mortgages,  316. 
stipulation  for,  in  promissory  notes,  316. 

PERSONAL  PROPERTY: 

interest  of  vendor,  under  land  contract  held  to  be,  354. 

PERSONAL   SERVICE: 

consideration  supporting  land  contract,  239  N.  240. 

PETITION: 

for  forms,  see  "Index  to  Forms." 

PLEA: 

in  summary  proceedings,  331. 

PLEADING  AND  PRACTICE: 

this  subject  is  treated  under  the  following  heads: 

"Damages,"  "Equity,"  "Quieting  Title,"  "Discharging  Mortgages," 
"Reformation  of  Instruments,"  "Foreclosure  of  Land  Contracts," 
"Summary  Proceeding,"  "Appeal,"  "Specific  Performance," 
"Forfeiture." 


INDEX  655 

[References  are  to  Pages] 
POLICIES,   INSURANCE,  9,   58. 

POSSESSION: 

actual  possession,  notice  of  interest,  114,  258. 

action  to  quiet  title  governed  by,  165. 

adverse,  130,  133,  134,  136. 

by  ejectment,  324. 

by  force,  324. 

by  vendee,  constitutes  notice,  114,  258. 

date  of,  contained  in  preliminary  agreement,  2,  232. 

may  be  tenant  or  holder,  258. 

peaceable,  324. 

statute  governing  adverse  occupants,  143. 

successive  adverse  occupants,  143. 

when  given  vendee,  25. 

when  repossession  accompanied  by,  declaration  of  forfeiture,  319. 

wrongful,  170. 

POWER  OF  ATTORNEY: 
to  lease  or  sell  land,  96. 

PRELIMINARY  AGREEMENT: 

see  "Agreements  Preliminary,"  "Forms,  Index  to." 

PRINCIPAL  AND  AGENT: 

contract  between,  not  within  the  statute,  17. 

division  of  proceeds  between,  17. 

when  contract  between,  unenforceable,  27. 

PRIVITY: 

as  between  successive  holders,  143. 
as  between  vendor  and  vendee,  143. 

PROCESS: 

incompetent  persons,  relative  to,  171. 

minors,  relative  to,  171. 

order  made  by  Circuit  Judge  for  issuance  of,  171. 

publication,  170,  171. 

PROMISSORY  NOTES: 

attorney's  fees  stipulated  in,  316,  356. 

penalties  stipulated  in,  316. 

part  payment  of  purchase  price,  18  N. 

PROPERTY  RESTRICTIONS,  7. 

PROTECTION  OF  VENDOR  RELATING  TO  ASSIGNMENT,  8. 

PUBLIC  POLICY: 
defined,  356. 
forfeiture  of  land  contract  for  violation  of  non-assignment  clause,  346. 


656  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
PUBLIC  HIGHWAY: 

recovery  of  possession  by  municipality,  143. 
statute  of  limitations  governing,  143. 

PUBLIC  AUCTION,  15. 

QUIETING  DEFECTIVE  TITLE: 

for  Forms,  see  "Index  to  Forms." 

auditor  general,  when  party  to  suit  for,  170. 

between  owner  and  purchaser  for  taxes,  174. 

bill  of  complaint  for,  see  "Forms." 

by  decree  in  forfeiture,  340. 

decree,  see  "Forms." 

decree  for  defendant  on  cross  bill,  172. 

demand  by  former  owner  not  grounds  for  suit  for,  170. 

effect  of  decree,  181. 

erroneous  conveyances  involving  heir  not  in  possession,  176. 

erroneous  conveyances  involving  estate  by  entireties,  175. 

form  of  bill  of  complaint,  see  "Forms." 

forms,  see  "Forms." 

fraud,  distress,  mental  incapacity,  etc.,  175. 

hostile  interests  must  be  averred  in  bill  of  complaint,  175. 

jury  trial  when  defendants  entitled  to  in  action,  175. 

land  contract  forfeiture,  182. 

legatees  and  devisees,  168. 

location  of  disputed  boundary  lines  not  included  in  action,  174. 

marital  status  of  grantors,  failure  to  state,  177. 

misdescription  of  premises,  177. 

Michigan  decisions  concerning  action,  172. 

outstanding  tax  titles,  169. 

parties  to  proceedings,  170. 

plaintiff,  who  may  bring  action,  165,  172. 

pleadings  and  briefs  in  late  Michigan  cases,  189. 

petition  to  set  aside  decree  following,  175. 

possession,  effect  of,  175. 

principles  in  relation  to,  165. 

quit-claim  deed  by  vendee  who  has  forfeited  land  contract,  172. 

statutory  provisions  covering,  168. 

substituted  service,  175. 

taxes  and  interest  must  be  paid  by  plaintiff,  169. 

unknown  defendants,  170,  172. 

unknown  heirs,  177. 

unknown  heirs  not  to  be  joined  in  suit  for,  172. 

unknown  parties  not  defendants,  172. 

when  bill  for  quieting  title  demurrable,  175. 

who  may  bring  action  for,  164,  172. 


INDEX  657 

[References  are  to  Pages] 

REAL  ESTATE: 

nature  of  vendee's  interest  in  land  contract,  99. 

when  contracts  covering  are  valid,  see  "Statute  of  Fraud"  and  "Agree- 
ments Preliminary." 

RESCISSION  OF  LAND  CONTRACT,  497,  498,  499. 

see   "Fraudulent   Misrepresentation,"    "Equity,"    "Equity   of   Redemp- 
tion." 

REGISTRATION  OF  AFFIDAVITS: 

duties  of  register  of  deeds  relating  to,  130  N. 
statutory  provisions  covering,  130  N. 

REGISTRATION  OF  LAND  CONTRACTS: 

duties  of  register  of  deeds  relative  to,  105. 

effect  of,  106. 

must  be  acknowledged  for,  105. 

specific  tax  must  be  paid  before,  114. 

statutory  requirements  for,  115. 

when  execution  is  defective,  curative  statutes,  110. 

when  land  affected  is  in  two  or  more  countries,  113. 

REGISTER  IN  CHANCERY: 
title  abolished,  166. 

RELEASE: 

of  interest  in  real  estate  must  be  in  writing,   17,  18,  19,  20. 
of  interest  in  real  estate  by  operation  of  law,  17,  18,  19,  20. 

REFORMATION  OF  LAND  CONTRACTS: 
bill  of  complaint,  see  "Forms." 
boundary  line  stated  in  contract  is  incorrect,  451. 
consideration  is  erroneously  entered  in  contract,  451. 
contract  includes  wrong  subject  matter,  451. 
contract  omits  part  of  subject  matter,  451. 
court  may  enter  decree  for  damages  in  lieu  of  decree  for  reformation, 

451. 
decree,  see  "Forms." 
description  of  property  is  incorrect, 
equity  will  grant  relief  when,  449. 
evidence,  452. 

illiterate  vendee  signs  contracts  containing  wrong  price,  451. 
lands  covered  by  contract  have  been  platted,  451. 
lien  on  unpaid  purchase  price  due  vendee  from  assignee,  450. 
mistake  in  contract  is  mutual,  450. 
mistakes  of  law,  451. 
mistake  of  law  and  facts  exist,  402. 
mistake  of  law  is  concurrent  with  incompetence.    462. 
mistake  of  law  is  concurrent  with  fraud,  432. 


658  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
names  of  parties  are  wrong,  451. 
parol  evidence  admissible  to  prove  mistakes,  450. 
part  of  land  has  been  omitted  in  contract,  451. 
pleadings  and  briefs  of  counsel,  Michigan  cases: 

Clarke  v.  Johnson  (214  Mich.  478),  455. 

LaBranche  v.  Perron  (209  Mich.  239),  470. 
rate  of  interest  is  erroneously  entered,  451. 
real  contract  is  not  expressed,  451. 

timber  reservations  have  been  erroneously  omitted,  451. 
words  have  been  erroneously  omitted,  451. 

RELIEF  FROM  FORFEITURE: 

see  "Forfeiture,"  "Equity  of  Redemption." 

RESTRICTIONS,  7. 

SALE  OF  LANDS: 

see  "Agreements  Preliminary,"  "Land  Contracts." 

auction,  15. 

sale  of  expectant  interest  in  land,  116. 

sale  and  purchase,  stages  in,  1. 

when  contract  for,  must  be  in  writing,  12. 

SERVICES: 

attorney's,  246. 

who  defrays  expense,  3. 

SEWER: 
who  shall  pay  for,  3. 

SIDEWALK: 

who  shall  pay  for,  3. 

SPECIFIC  PERFORMANCE  OF  LAND  CONTRACT: 

for  Forms  relating  to,  see  "Forms,  Index  to." 

action  brought  by  wife,  259. 

administrator  or  executor  of  vendor's  estate  as  parties  to  action,  254 

against  assignees  in  bankruptcy,  259. 

agreement,  preliminary,  court  may  decree,  of,  232. 

agreement,  pre-dated,  executed  on  Sunday  not  enforceable,  233. 

appeal  from  decree  in  probate  court,  274. 

applications  of  remedy,  230,  232. 

assignee  or  trustee  of  vendee  in  bankruptcy  not  subject  to,  at  in- 
stance of  vendor  or  assigns,  259. 

assignee  or  trustee  of  vendor  in  bankruptcy,  subject  to,  at  instance 
of  vendee  and  assigns,  259. 

assignees  as  parties  to  action,  258. 

assignee  of  vendor  with  notice  of  prior  contract,  party  defendant,  257. 

assignee  not  a  purchaser  for  value,  257. 


INDEX  659 

[References  are  to  Pages] 
attachment  or  execution  creditor  parties  to  action,  254. 
based  on  agreement  to  execute  land  contract,  232. 
based  on  oral  agreement  fully  performed,  247. 
based  on  oral  agreement  partly  performed,  248. 
bills  of  complaint,  see  "Forms,  Index  to." 
breach,  effect  of  first  substantial,  as  to,  244. 
by  guardians  of  incompetents  and  spendthrifts,  275. 
by  guardians  of  minors,  275. 
by  husband  against  wife,  249. 
by  vendor  against  vendee,  235. 
cases  where  relief  denied,  250,  262. 
cases  where  relief  granted,  245,  260. 
cestui  que  trust  and  trustee  parties  to,  252,  255. 
consideration,  inadequacy  of,  not  grounds  for  denial  of,  236. 
consideration  in  option  contract  to  support,  239. 
consideration,  service  and  improvement,  248. 
continuous  service  involving  support  as  consideration,  248. 
contract,  unfair,  harsh,  oppressive  or  inequitable,  no  relief,  by,  237. 
contract,  certain  in  its  terms,  court  will  decree,  227. 
contracts  executed  on  Sunday,  233,  311. 
conversation  between  attorney  and  defendant's  agent  concerning,  not 

admissible,  250  N.,  259. 
corresponding  rights  of  vendee  or  vendor,  235. 

damages  for  part  and  specific  performance  as  to  remainder,  234,  261. 
damages  in  lieu  of,  231. 
decree  for,  see  "Forms,  Index  to." 
decree  may  grant  vendor  lien,  232. 
defective  abstract,  232. 

defects  in  abstracts  may  be  waived  by  vendee,  248. 
defective  title  defense  to,  252. 
denied  when  defendant  cannot  obtain  title,  241. 
denied  when  defendant  is  old  and  inexperienced,  238. 
denied  when  defendant  never  owned  the  land,  241. 
denied  when  defendant  unable  to  comply,  241,  242. 
denied  when  innocent  third  party  holds  title,  242. 
denied  when  mistake  induced  by  plaintiff,  242. 
denied  when  mistake  known    to    plaintiff   but   not    induced    by   him, 

243. 
denied  when  mutuality  is  lacking,  244. 
denied  when  parties  incompetent,  241. 

denied  when  performance  nugatory  or  decree  impossible,  240. 
denied  when  terms  of  contract   produce   inequalities   in   equities  of 

parties,  238. 
denied  when  transfer  is  based  upon: 

exchange  for  personal  service  and  action  brought  by  vendor,  240. 


ggo  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
denied  where   contracts   require   continuous   service   involving   skill, 

technical  knowledge,  240. 
description  of  property,  undivided  interest  sufficient,  246  N. 
description  of  property  in  Bill  of  Complaint,  259. 
discretionary,  the  remedy  is,  226. 
dower  interest  when  not  affected  by,  234. 
effect  of  conveyance  in  probate  court,  274. 
effect  of  conveyance  prior  to  hearing,  231. 
effect  of  registration  of  decree  in  probate  proceedings,  275. 
effect  of  first  substantial  breach  of  contract,  244. 
enforcement  of  oral  contract,  248,  310. 
evidence  in  dispute  as  to  amount  due,  245. 
evidence,  practice,  miscellaneous  decisions,  259. 
final   judgment   in   summary    proceedings    defeat   action    for   special 

performance,  338. 
form  of  petition,  see  "Forms,  Index  to." 
forms,  see  "Forms,  Index  to." 
fractional  interests  owned  by  defendant,  231. 
fraud  or  mistake  as  defenses,  235. 
general  principles  governing,   227. 
granted  in  exchanges  of  lands,  deeds  in  escrow,  249. 
granted  when  executory  contract  complies  with,  232. 
granted  when  personal  service  as  consideration  has  been  performed, 

247. 
granted  when  third  party  has  knowledge  of  outstanding  contract,  242. 
granted  as  to  undivided  interest,  246  N. 
granted  when  vendee  is  not  innocent  third  party,  242. 
grantee  of  vendor  as  defendant,  257. 

grantee  of  vendor  cannot  sustain  against  vendee's  assignee,  258. 
grantee  of  vendee  v.  grantee  of  vendor,  258. 
guardians  of  minors,  by,  275. 
guardians  of  incompetent  persons,  by,  275. 
hearing  of  petition  in  probate  court,  274. 
heirs  at  law  of  vendor  parties  to  action,  254. 
illustrative  cases,  relief  denied,  250,  262. 
illustrative  cases,  relief  granted,  245,  260. 
inadequacy  of  consideration,  236. 
in  cases  of  substituted  service,  may  be  granted,  256. 
increase  in  value  of  property  no  defense,  246. 
inequality  of  equity,  237. 
innocent  holder  of  title  without  notice  of  prior  contract  can  retain 

it,  257. 
instance  of  vendor  or  assigns,  235,  258. 
interest  of  party  in  subject  matter  test,  253. 
interested  persons  silent,  255. 
intoxication  as  basis  for  denial  of,  234. 


INDEX  661 

[References  are  to  Pages] 
intoxication  as  grounds  for  refusal,  234. 
laches,  may  defeat  action  of,  232. 
lienors  and  creditors  of  vendor  estate,  parties  to,  254. 
may  be  awarded  on  undivided  interest,  246  N. 
minors,  guardians  of,  against,  275. 
mistake  as  affecting,  242. 

mistake  induced  by  defendant's  negligence  no  defense,   243. 
mistake  by  defendant  without  negligence   is  defense,  243. 
mistake  of  law,  affecting,  310. 
must  be  based   upon  competent  testimony,   226. 
must  be  based  upon  rules  of  equity,  226. 
mutuality  of  the  remedy,  exceptions,  244. 
mutuality  of  contract  necessary  for,  244. 

nature  of  transactions,  in  action  for,  may  be  inquired  into,  294. 
non-enforceable    agreement,   238,    240. 
one  dollar  consideration,  248. 
option   contracts,   239,  582. 

see  also  "Options." 
oral  contract,  by  heirs-at-law,  249. 
oral  contract,  249. 

oral  contract  involving  homestead,  249. 

original   vendor  cannot   sustain   against   assignee   of   vendee,   258. 
outstanding  contracts   without  knowledge   of  wife,   256. 
parol  agreement  based  on  consideration  of  service  rendered,  247. 
parties  to  original  contract  parties  to  action,   253. 
parties  to  the  action,  253. 

persons  having  interest  in   subject  matter  must  be  joined   in,   253. 
persons  having  interest  may  be  defendants,  253. 
persons  having  unknown  interest  in,  253. 
persons  claiming  interest  in  subject  matter,  255. 
petition    in    probate    court    for    conveyance    from    administrator    or 

executor,  273. 
pleadings  and  briefs  used  in  late  Michigan  cases,  282. 
possession    of   vendee    under   land    contract,    defeats,    by    purchaser 

from  vendor,  231. 
preliminary   agreement,   232. 
pre-dated  agreement  executed  on  Sunday,  233. 
probate  court  jurisdiction  in,   273. 

property  lying  outside  the  state,  jurisdiction  for,  230,  231. 
provisions  for  appeal,  274. 
reformation  of  instruments  and   specific  performance,  231. 

see  also  "Reformation  of  Instruments." 
refusal  to  become  party  plaintiff  in  suit,   255. 
relief  denied  if  contract  unfair,  harsh,  etc.,  235,  237. 
relief  denied    (illustrative   cases),   250,   262. 
relief   granted,    (illustrative    cases),    245,    260. 


662  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

relief  when  wife  fails  to  join  in  contract,  234. 

remedy  against  husband  only,  234. 

remedy  discretionary,   226. 

remedy  for  enforcement  of  contracts  for  sale  of  real  estate,  227. 

rule  relating  to  privity  of  contract,  258. 

sharp  practice  grounds  for  denial  of,  237. 

specific   performance   in    probate   court,   273. 

specific  performance  of  option  contract,  239. 

specific  performance  vendor  v.  vendee,  235. 

status  of  unfilled  contracts  in  case  of  death  of  one  of  parties,  272. 

subject  matter  conveyed  to  third  party,  254. 

Sunday,  agreement  dated  on,  cannot  be  specifically  enforced,  233,  311 

substituted  service,  may  be  granted  in,  256. 

tender,  sufficiency  of,  246. 

tender,  what  constitutes,  246. 

the  petition  in  probate  court  for,  273. 

unfair  contract,  no  relief,  by,  237. 

undivided   interest,   as   applied   to,   246. 

vendee  against  grantee  of  vendor,  257. 

vendee  v.  vendor,  230. 

vendee  v.  assignee  of  vendee,  258. 

vendor  v.  vendee,  235. 

vendor's  lien  on  land,  232. 

when  assignee  is  entitled  to  deed,  231. 

when  contract  is  unfair,  237. 

when  court  may  decree  damages  in  lieu  of  specific  performance,  231. 

when  court  may  decree  specific  performance  as  to  part  and  damages 

as  to  remainder,  234. 
when  decree  impossible  to  enforce,  240. 
when  deeds  in  escrow,  230. 
when  defendant  is  non-resident  of  state,  256. 
when  defendant  is  beyond  jurisdiction  of  courts,   256. 
when   equitable   jurisdiction   firmly   establishes,    227. 
when  facts  do  not  warrant  rescission,  235. 
when  granted  against  original  vendor  and  his  vendee,  242. 
when  husband  makes  contract  without  knowledge  of  wife,  256. 
when  laches  may  defeat,  232. 
when  laches  will  not  defeat  remedy,  232. 
when  lands  lying  outside  the  state,  231. 
when  lands  lying  in  other  countries,  231. 
when  legal  remedy  inadequate,   227. 

when  mistake  relates  to  vital  portions  of  contract,  242. 
when  mutual  exchange  of  lands,  230. 
when  may  be  invoked  by  vendor  or  vendee,  230. 
when  performance  would  be  nugatory,  240. 


INDEX  663 

[References  are  to  Pages] 

when  premises  have  been  conveyed  to  a  bona  fide  purchaser  before 

hearing,  231. 
when  relief  denied,  250,  262. 
when  relief  granted,  245,  260. 
when  remedy  denied  in  option  contract,  582. 

when   specific    performance    of   option    contract    denied,    239,    582. 
when   specific   performance   by   publication,    256. 

when  two  or  more  remedies  may  be  involved   in  same  action,  231. 
when  vendee  against  purchaser  from  vendor,  257. 
when  vendee  refuses  contract,   252. 
when  wife  not  proper  party,  255,  256. 
where  plaintiff  has  not  fully  performed,   250. 
where  non-enforceable   agreement  has   been   performed   by   plaintiff, 

238. 
wife  of  neither  vendor  nor  vendee  need  be  joined  as  defendant,  255, 

256. 
wife  fails  to  join  in  contract,  relief  by,  234. 
wife  of  vendee  or  vendor  not  proper  parties  when   they  have  not 

signed  contract,  255. 

SPECIFIC  TAX  ON  LAND  CONTRACTS: 
basis  for  computation  of,  116. 
fixed  by  statute,  114. 

STANDING  TIMBER: 

contract  for  sale  of,  must  be  in  writing,  16. 

surrender  of  vested  interest  in  real  estate  must  be  in  writing,  17. 

STATEMENT: 

vendees'  right  to,  10. 

STATUTE  OF  FRAUDS: 
acceptance  under,  20. 

action  at  law  on  verbal  contract  partly  performed,  50,  53. 
agreements  creating  trust  come  under,  439. 
agreement  under,  sufficiency  of,  14,  20,  21,  50,  51. 
agreements  under  held  insufficient,  50  N.,  51,  52. 
agreement  pertaining  to  real  estate  held  not  within,  17. 
agreements,  partly  performed  held  sufficient,  50  N,  51,  52. 
agreement  sufficient  to  comply  with,  but  practically  unenforceable,  25. 
agreements,  effect  of  void,  under,  48,  50,  439. 
amendment  to,   15  N. 

auction   sales,   sufficiency   of  memorandum,    15. 
bargain  between  agent  and  principal  not  affected  by,  17. 
briefs    used    in    late    Michigan    cases,    61. 

commission  agreement  for  sale  of  real  estate,  when  not  void,  565. 
construing  instruments  together,  14,  20,  438. 
construction  of,  13. 


(364  THE  LAW  0F  LAND  CONTRACTS 

[References  are  to  Pages] 
contract,  preliminary  provision  of,  24. 
contracts  affected  by,  16,  17,  18. 

contracts  consisting  of  detached  memoranda,  16,   17,   438. 
contracts,  varying  terms  of  by  parol  evidence,  18  N,  23,  24,  438. 
contracts  held  insufficient  under,  38,  48,   50,   58. 
contracts  held   sufficient  under,  31,  38,  50,  58. 
description  by  house  number  sufficient  under,  27. 
description  held   insufficient  under,   28   N,  38,  48. 
description  held   sufficient  under,  27,  31,  38. 
does  not  apply  to  division  of  proceeds  from  sale  of  lands,  17. 
easements  in  land,  affected  by,  16. 
effect  of  partnership  land  contracts,  16. 
effect  of  part  performance  of  oral  agreement,  50  to  58. 
effect  of  verbal  right-of-way  agreement,   16. 
effect  of  agreement  to  extend  spur  track,  16. 
effect   of  sale   of   standing   timber,   16. 
effect  of  void  agreements  under,  48,  439. 
escrow,  when  disposal  of  land  contract  advisable,  57. 
essentials   of   contract,   12,    15,   24,   27. 
examples  of  surrender  on  release  of  interests,  by  operation  of  the 

law,  17,  18,  19. 
examples  of  void  verbal  agreements,  13  N. 
fire,  loss  by,  pending  purchase,   58. 
general  consideration  of,  12. 

instances  where  contract  has  been  surrendered  by  parol,  19  N. 
leases,  as  affecting,  13. 

letters  or  telegrams  constituting  agreement  under,  14,  20. 
option  comes  within,  63,  572. 

oral  contracts  of  partnership  dealing  in  land  affected  by,  16. 
oral  agreements  partly  performed,  when  enforced,  55  N. 
part  performance  of  oral  agreement,  effect  of,  50. 
part  performance  of  verbal  contracts,  55  N. 
parol  evidence,  aiding  memorandum,  by,  23,  62,  438. 
parol  evidence,  purposes  for  which  may  be  introduced,  23,  62,  438. 
preliminary  contract,   essential   provisions  of,   24. 
provisions  of,   relating  to   agreements,   16. 
real   estate   option,   sufficiency  of,   573. 
relief  refused,  uncertainty  of  contract,  51  N. 
relief  granted,   50,  245,   262. 
right-of-way,  affected  by,  16. 
sufficiency  of  tender  of  performance,  60. 

surrender  or  release  of  interests  in  lands,  manner  of,  17,  18,  19  N. 
surrender  or  release  of  interests  by  operation  of  law,  18,  19  N. 
tender  of  performance,  sufficiency  of,  60. 
timber,  sale   of  standing,  affected  by,   16. 
two  statutes  of  frauds,  18  N. 


INDEX  665 

[References  are  to  Pages] 
STATUTE  OF  LIMITATIONS: 
special  statute  of,  133. 

SUFFICIENCY  OF  TENDER  OF  PERFORMANCE: 
see  "Tender  of  Performance." 

SUMMARY  PROCEEDINGS: 

advantages  of,  to  vendee,  to  vendor,  324. 

appeal  bond,  see  "Froms." 

appeal  from  judgment,  331,  333. 

bond  on  appeal  in,  see  "Forms." 

certiorari  to  circuit  court,  336. 

complaint   in,   330. 

discretion  of  circuit  court  on  appeal,  336. 

duty  of  commissioner  to  file  return,  337. 

effect  of  final  judgment  in,  338. 

extension  of  time   for   appeal,   333. 

first  step  in  effecting  appeal,  333. 

forms,    see    "Forms." 

how  service  may  be  made,  330. 

incidents  in  relation  to,  331. 

jurisdiction  of  justice  of  peace,  330. 

jurisdiction  of  circuit  court  commissioner,  314. 

jurisdiction  of  circuit  court  on  appeal,  338. 

limit  of  time  in  which  defendant  may  pay,  338 

occupancy  must  be  unlawful,   330. 

plea  in,  331. 

pleadings  in,  see  "Forms,  Index  to." 

registration  of  writ  of  restitution  effect  of,  339. 

requirements  of  bond  on  appeal,  335. 

return  on  appeal  in,  337. 

return  day  in,  330,  332. 

review   of   judgment   of   circuit   court,    336. 

second  step  in,  effect  appeal,  333. 

service  of  summons  in,  330. 

service  by  personal  delivery,  330. 

service  by  leaving  process  at  abode,  330. 

steps  in,  effect  appeal,  333. 

substituted  service,  332. 

taxable  costs  and  circuit  court  fees,  333. 

time    in    which    defendant    may    pay    judgment    rendered    in    circuit 

court,  338. 
vendee's  right  under,  324. 
when  appeal  must  be  perfected,  333. 
when  defendant  shall  appear,  331. 
when  laches  will  not  defeat  remedy,  232. 
who  may  appeal  from  judgment  in,  333. 


666  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
who  may  serve  process,  330. 
when  question  of  title  may  be  raised,  331. 
writ  of  error,  336. 

writ  of  restitution,  when  effective,  334. 
when  remedy  may  be  denied;  laches  part  of  plaintiff,  232. 
when  service  must  be  made,  330. 
when  terms  of  contract  are  ambiguous,  232. 

SUMMONS: 

prayer  for,  not  necessary  in  bill  of  complaint,  168. 

SUNDAY: 

agreements  executed  on,  233,  260. 
modification  of  agreement  made  on,  260. 
preliminary  agreements  executed  on,  233. 
pre-dated  agreements  executed  on,  void,  233. 

SUBROGATION: 

substitute  for  clause  prohibiting  assignment  clause,  8. 
vendee's  right  to,  9. 

SUB-CONTRACTS: 

clauses  to  be  inserted  for  protection  of  vendee,  9,  10. 

TACKING   SUCCESSIVE   POSSESSIONS: 
as  between  vendee  and  grantee,  143. 
by  administrator,  145. 
by  landlord,  145. 
by  mortgagor,  145. 
purchaser  at  judicial  sale,  144. 
successive  grantees,  146. 
successive  holders,   146. 
vendee,  144. 

TAXES: 

irregularities    in    sale   because    unpaid,    169. 

lien,   when    constituting,    is    cloud   on    title,    123. 

misrepresentations  concerning,   494. 

owner  must   pay   purchaser  of,    176. 

property  sold  under  tax  title,   169. 

specific  tax  on  land  contracts,  114. 

who  shall  pay,  3,  8,  9,  25. 

TAX  TITLE: 

invalidity   of  tax   proceedings,    169. 

irregularities  in  tax  sale,  169. 

outstanding  tax  titles,  170. 

payments  made  under  void  tax  title  not  recoverable,  170. 

purchaser  defendant  in  suit  to  quiet  title,  174. 


INDEX  667 

[References  are  to  Pages] 
purchaser  of,  must  give  statutory  notice  to  redeem,  174. 
quieting  title  encumbered  by,  169. 

TELEGRAMS: 

when  binding  contract  formed  by,  14,  20. 

TENANTS  BY  THE  ENTIRETY: 

children  of,  have  no  interest,  101. 
vendees,   when  husband   and   wife,   as,   101. 

TENDER  OF  PERFORMANCE: 
after  notice  of  forfeiture.   176. 
by  prospective  purchaser  from  vendee,  60. 
necessity  of,  in  relief  from  forfeiture,  368. 
sufficiency  of,  60,  346. 

time  held  not  to  be  essence  of  contract,  when,  60. 
time  essence  of  contract,  when,  60. 
when  vendor  fails  to  appear,  60. 
not  necessary  for  vendee  to  prepare  and  tender  deed,  246. 

TENDER: 

see  "Tender  of  Performance." 

as  requirement   for  restoration  of  status  quo,   508. 

exceptions  to  general  rule  governing  in  rescission  of  contracts,  508. 

general  rule  governing  rescission  of  contracts,   508. 

not  condition  precedent  to  bill  for  restoration,  etc.,   508. 

of  deed  upon  demanding  restoration,  508. 

TIMBER: 

standing  sale  of,  16. 

TITLE: 

see   "Abstracts  of  Title,"   "Quieting   Title." 

abstracts  held  defective,  146,  152. 

action  to  quiet,  164. 

building  restrictions  as  clouds  on  title,  247,  N.  25. 

by  adverse  possession,  how  obtained,   130. 

clouds  on  the  title,  how   removed,   164. 

clouds  on  the  title,  definition  of,  122. 

correcting,  by  removing  ancient  mortgages,  123. 

correcting  defects,  by  recording  affidavits.  126. 

correcting  defects,  by  suit  to  quiet  title,  163. 

decisions   holding  what  titles   defective,   146,   152. 

defective  abstracts  as  defense  in  specific  performance  suit,   217. 

defects  may  be  waived  by  vendee,   248. 

defects  of  record,   126,   129. 

defects  of  record,  which  may  be  corrected  by  affidavit,  12'.). 

defects  of  record,  how  remedied,  123,  126,  129,  146. 

defective  titles,  Michigan  decisions,   146. 


668  THE  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 

distinction  between  "good  title"  and  "good  title  as  shown  by  ab- 
stract," 120. 

distinction  between  marketable  and  merchantable  title,  120. 

doubtful  title,  what  is,  120. 

examination  of,  3,  25. 

fee  simple,  when  vendor  does  not  own,  9. 

foreclosure  and  sale  of,  under  mortgage,  146. 

forms,  see  "Forms,  Index  to." 

furnished  by  vendor,  68. 

how  soon  furnished,  25,  259. 

illustrative  cases,  clouds  on  title,  122. 

length  of  time  for  examination,  25. 

marketable,  what  is,   119,   120. 

merchantable,  what  is,  120. 

mortgage,    effects    on,    123. 

property,    misdescribed    in,    146. 

provisions  in  contract,  regarding,  4,  9,  25,  68,  120. 

purchaser  of  tax  titles,  effect  on,  170,  174. 

precautions   necessary   regarding,   9,   68. 

quieting  title,  164. 

remedying  defects  in,  164. 

tax  title  holder's  possession  not  adverse  to  holders  of,  133. 

terms  used  describing,  and  effects  of,  119. 

undetermined    suit    effecting,    146. 

vendee  estopped  to  deny  vendor's,  328,  329. 

vendor  should   quiet,   130. 

what  company  shall  certify,  3,  25. 

when  payment  of  taxes  aids  adverse  possession  of,  142. 

when  in  heirs  at  law,  99. 

where  contract  is  silent  as  to  kind  of  title,  121. 

who  defrays  expense  incident  to  furnishing,  3,  9,  25. 

who  to  furnish,  9. 

wife's  dower,  147. 

VACANT  AND  UNOCCUPIED  PROPERTY: 
adverse  possession,  classes  of  property,  140. 
adverse   possession  of,  what   constitutes,   136. 

VENDEE: 

actions  for  fraudulent  misrepresentation,  see  "Fraudulent  Misrepre- 
sentation." 

adverse  possession  claimed  by,  and  rule  governing,  136,  143. 

adverse  possession  under  contract  of  purchase  by,  143. 

agreements  preliminary,  for  forms  favorable  to  vendee,  see  "Forms, 
Index  of." 

assessments  payable  by,  3,  10. 


INDEX  669 

[References  are  to  Pages] 
assignment,   right   to  object  where  agreement  breached   by   vendor, 

244. 
assignment  to,  of  leases  on  property  purchased,  10,  11. 
assignment  by,  validity  of  clause  again,  346,  358. 
assignment,  waiver  by  vendor  of  right  to  object,  322. 
broker's    commission,   when    payable    by,    570. 
rapacity,   natural   and   mental,   of,    103,    104. 
consent  necessary,   18,   22. 
damages,  when  entitled  to  by,  509. 
default,  under  land  contract,  by,  69. 
dower,  of  widow  of,  in  land  contract,  100. 
estate   by   entireties   when   husband   and   wife   are,    101. 
estopped  from  denying  vendor's  title,  328,  329. 
forfeiture,  when   laches  of,  not   great,   347. 
forfeiture,  when  results  in  great  loss  to,  344. 
husband  and  wife,  interest  of,  as,  101. 
husband  and  wife  joined  with  others  as,  102. 

illiterate,  effect  of  signing  contract  containing  wrong  price,   451. 
interest  when  reduced  to  amount  of  mortgage,  10. 
mortgage,  lien  created  by,  superior  to  interest  of,  7. 
mortgage,  when  assumed  by,  10. 
obligations   after   purchase,    112. 
possession    by,   constitutes   notice,   114,   258. 
possession,  when  given  to,  25. 
precautions  necessary  in  accepting  title,   9. 
privity  between  vendor  and,  143. 
protection  under  sub-contract,  9. 

purchasing  outstanding  title  is  trustee  for  vendor,  329  N. 
rights,  9,  56,  58,  98. 
right  to  subrogate,  9. 
statement  from  vendor,  9. 

specific   performance,   see   "Specific   Performance." 
tender   of   performance,   when   vendor   fails   to   appear,    66,    246. 
tacking  successive  possessions,  as  between  grantee  and,  144. 
vendor's  title,  estopped  to  deny,  328. 
vendor's  title,  when,  not  estopped  to  deny,  328. 
vendor's  title,  when,  acquires,  329. 
title  in  equity  held  to  be  in,  98. 

VENDOR: 

administrator,  vendor's  interest  passes  to,  99. 

adverse  possession,  143. 

adverse   possession,   vendee  v.   vendor,   136. 

agreements  preliminary,  for  forms  favorable  to  vendor,  see  "Forms. 

Index  of." 
assignment   and   enforcement   of   lien,    117. 
assignment,  right  to  object,  where  agreement  breached  by,  244. 


670  THB  LAW  OF  LAND  CONTRACTS 

[References  are  to  Pages] 
assignment,  short  form  with  consent  of,  91. 
assignment,  validity  of  clause  against,  346,  356. 
assignment,  waiver  of  right  to  object  by  acts  of,  322,  354. 
breach  of  contract  by,  347. 
capacity,  natural  and  mental,  103,  104. 
damages,  liability  of,  509. 

default  by  vendee,  course  open  to,  after,  312,  343. 
dower,   of  widow  of.   in  land   contract,   99. 
ejectment,  to  obtain   possession  by,  advantages  of  to,  324. 
equitable  lien  for  unpaid  purchase  price,  117. 
foreclosure  of  lien,  see  "Foreclosure  of  Vendor's  Lien." 
forfeiture,  waiver  of,  by,  347. 

forfeiture,  when  payments  accepted  by,  waives  right  to,  322. 
forfeiture,  when  results  in  great  loss  to,  344. 

fraudulent    misrepresentations    by,    see    "Fraudulent    Misrepresenta- 
tions." 
how  affected  by  bona  fide  purchaser,  117. 
identity  of,  129. 

interest  of,  analogous  to  interest  of  mortgagee,  354. 
interest   passes   to   administrator,    99. 
interest  under  land  contract,  of,   9. 
liable  to  broker,  in  refusing  to  consummate  sale,  565. 
lien  for  unpaid  purchase  price,   117,  312. 
marital  status  of,  126,  129. 
name  of,  126. 

nature  of  estate,  created  by  land  contract,  title  in,  98. 
not  confined  to  sale  of  legal  title  or  title  in  fee,  117. 
personal  property,  interest  of,  354. 
privity,   as   between  vendee   and,   143. 
protection   in   assignment   clause,   8,   26. 
quieting  title  by,  130. 
repossession  by,   319. 
rights  and  obligations,  7,  8,  9,  98,  117. 
specific  performance,  see  "Specific  Performance." 
summary  proceedings  by,   see  "Summary  Proceedings." 
title,  in  land  contract  held  by,  403. 
title  need  not  be  marketable  at  time  of  sale,  146. 
title,  when  vendee  not  estopped  from  denying,  329. 
when  fee  simple  title  not  owned  by,  9,  26,  99. 
when  husband  and  wife  are,  102. 

wife  of,  should  execute  land  contract  to  bar  dower,  99. 
witness  to  signature  of,  104. 

VENDOR'S  LIEN: 

foreclosure  of,  319. 


INDEX  671 

[References  are  to  Pages] 

VERBAL  AGREEMENT: 

see  "Oral  Agreement  to  Sell  Real  Estate." 

VOID  AGREEMENT: 

promise  made  in  consideration  of,  48. 

ratification  of  by  part  performance,  50,  56. 

when  money  has  been  advanced,  48. 

when  one  agrees  to  purchase  for  third  party,  48. 

when  enforceable  by  equitable  estoppel  of  defendant,  296,  310. 

WAIVER: 

of  actions  by  foreclosure  of  vendor's  lien,  406. 

of  forfeiture  on  default  in  contract,  322. 

of  irregularities  in  summary  proceedings  by  defendant,  331,  332. 

of  right  to  rescind  by  conduct  of  plaintiff,  322,  347. 

when  conduct  of  parties  constitute,  60,  61. 

WATER  ASSESSMENT: 
who  shall  pay,  3. 

WIFE: 

compensation  for  present  value  of  wife's  contingent  right  of  dower, 

234. 
dower  interest  of,  in  land  contract,  100. 
failure  of,  to  join  in  execution  of  land  contract,  234. 
when  not  party  defendant  in  specific  performance  suit,  234. 

WITNESSES: 

statutory  requirements  of,  as  to  land  contract,  104. 

when  required  number  is  missing  in  land  contract,  effect  of,  110. 

WRITTEN  INSTRUMENTS: 

when  part  "of  pleading  and  how  used,  167. 

see  also  "Agreements  Preliminary,"  "Land  Contracts,"  "Statutes  of 
Fraud,"  "Brokers,"  "Specific  Performance,"  "Fraudulent  Misrepre- 
sentations." 


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